Recent Posts in Visitation Category

Parental Relocations and Move-Away

In response to a recent article I posted about the case of F.T. vs. L.J., the mother of the Mother in Mark T. vs. Jaime Z. submitted a comment about a new reversal of a case involving Judge Lisa C. Schall, in San Diego, on this Blog - for which I thanked her. I am grateful that family law litigants in these published appeals are increasingly airing their side of the experience here, and I invite you to as well!

The decision in her daughter's case was published on Friday, last week, so I now understand what the maternal grandmother, "Shelly," was referencing.

My sense is that appellate courts are expecting more out of trial judges, like never before, and lawyers too, to be sure, and therapists and court services personnel and litigants themselves! An interesting footnote is that the father's attorneys in this case were certified family law specialists, and (presumably) local San Diego heavyweights, and the mother represented herself and yet succeeded "against all odds." Is this an Elkins Aftermath, leveling the playing field for unrepresented parties against experienced adversaries?

Mark T. and Jamie Z. (2011) 194 Cal.App.4th 1115

Judge Lisa C. Schall doesn't like move-aways, it appears. These applications challenge the non-moving parent and can negatively impact a child's access to that parent, and disrupt parent-child bonding, if a holistic parenting plan under the move-away regime is not developed. 

Judge Schall bears the indignity of being reversed twice now in less than 30 days in a reported appellate decision - quite a scolding. Family law is damned tough for judicial officers, who are doing their best to protect children and weigh in consistently with the cutting edge policies of current mental health science as well as their in-house (FCS) advisors. The problem at present is that the opinions of MHP's (mental health providers), and the wisdom of the reviewing courts, are in conflict. The science of move-away as it affects families from the MHP perspective is still developing, and it collides with certain cherished assumptions the law makes about the rights of Americans, and specifically parents in California under our current statutory scheme (see Family Code section 7501 and the Burgess case) to move freely. 

In both cases Judge Schall accepted (mostly) the independent opinions of outside, court-appointed, mental health forensics and ignored the opinions of the Family Court Services mediator - here the very same Lynne Waldman who made recommendations in the F.T. case. FCS mediator Waldman's belief was that Jamie's move away request should be granted, noting that Jamie had been L.'s primary caretaker since his birth, that Jamie had been unable to find a job in San Diego and was "living in poverty," and that Jamie appeared "to have a clear plan for the move."

Judge Schall now has two strikes against her for using judicial body language to create a result that she felt was fair and appropriate, and her findings on the record illustrate her dilemma. I'm reminded of my early youth playing pool (not so much) and hoping if I twisted my body hard enough, the ball would fall in the pocket. Most of us are doing the best we can. Trial judges, however, have a script they must follow.

In effect, Judge Schall's mistake was to refuse to permit a move-away by a Mom with a 22 month old child who had indeed been the child's "primary caretaker since birth." By effectively coercing Mom not to move by denying her move-away request, and by ignoring the question of "in whose custody" the child's best interests were served" or what arrangement should be imposed were Mom to move, Judge Schall committed reversible error. The justices ruled:

"The court must decide de novo what physical custody arrangement would be in the child's best interests, assuming that the requesting parent will relocate ." Therapist Dr. Lori Love (we can't invent this name stuff) was appointed to evaluate the family for the Court and opined that "[t]his examiner understands the importance of having extended family around for support however this cannot be justified as being in [L.'s] best interest[s] when it means removing him from a loving and capable father. Jamie stated that she did not have an active father in her life and very much wants that to happen for [L.] It would be virtually impossible for Mark to be an active father from across the country." Dr. Love urged the child was too young for the move and went on to recommend that Mom not "be permitted to move out of the County of San Diego. At the same time, this forensic therapist was unwilling to recommend a primary change in custody and assumed that the mother would in fact remain the primary caretaker in San Diego county. She made no recommendations about what custodial arrangement should become effective when or if the Mother moved.

The appellate justices ruled: "Where, as here, a parent who shares joint custody of a minor makes a request to relocate the child in the context of an initial custody determination, the trial court must decide de novo what physical custody arrangement would be in the child's best interests. In making its custody determination, the court must proceed on the assumption that the parent who is making the request will relocate his or her own residence, regardless of whether the court grants or denies the request. In this case, the court erroneously failed to conduct its best interests analysis based on the presumption that Jamie would be relocating to Minnesota."

The trial court adopted the recommendations of Dr. Love, even though Dr. Love failed to address what should happen if and when Jamie relocates out of state. "The very issue that Dr. Love was supposed to address is what parenting plan would be in L.'s best interests, given that Jamie intended to move to Minnesota .... The court misapplied the law in adopting Dr. Love's recommendations, because in making those recommendations, Dr. Love incorrectly assumed that preserving the status quo parenting arrangement was an option, even in the face of Jamie's expressed intent to move...."
 
At trial the Father's attorney asked Mother whether she would move if the court were to deny her request to relocate, and Mom's response showed she was tortured by the question. The appellate court ruled that this question by counsel was improper - courts cannot consider whether the primary parent might alter their plan of relocate depending upon how the court rules. As a trial lawyer this is interesting to me, because this question is often used to telegraph a message to the Court that implies it can deny the move because the moving parent evidently doesn't want to move 'badly enough.'

Apparently the trial court suspected Mother's motives for moving might include frustrating Father's access, but the court did not actually make such findings. "The court's comments regarding Jamie's reasons for moving to Minnesota appear to constitute second-guessing as to the wisdom of Jamie's decision to move (i.e., questioning the "necessity" of the relocation), as opposed to a finding that her decision to move was made 'simply to frustrate the noncustodial parent's contact with the minor child.'" There is no requirement that a parent who has the right to custody of a child establish the necessity of a proposed move. "[E]ven where the court finds that a move away request is being made in bad faith, the court must view this finding as only one potential factor in deciding whether to allow the child's residence to be moved; it does not permit the court to deny the move away request on the presumption that in denying the request, the court can assure that the requesting parent will not in fact move, and that the court can thereby maintain the status quo parenting arrangement. That one parent may have been motivated, in part, to relocate the child's residence by a desire to lessen the child's contact with the other parent does not mean that the court should apply any standard other than what would be in the best interests of the child."

The Bottom Line

Q.   I obtained DV orders against my child's mother because of her abusive behavior. Since custody was an issue too, the judge ordered us to mediate with Family Court Services. The FCS mediator has recommended week off, week on visitation to her of our 9 year old, but sole legal custody and sole physical custody to me. We have a hearing next week. I am having a hard time understanding how this much visitation time (50%) makes sense. Any thoughts?

Jorge

Jorge:

I think that the family court services mediator doesn't understand the law, but on a level I understand why he/she wants to encourage frequent contact with the child's mom. In this case it appears that by giving you sole legal and sole physical custody titles, that they can recommend any timeshare in terms of visitation that feels appropriate. They can't. The recommendation that you mention is clearly an attempt to end-run the limitations imposed by Family Code section 3044.

Family Code section 3044 creates a rebuttable presumption against joint legal and joint physical custody where there is independent evidence of domestic violence (as in permanent restraining orders for up to five years, as opposed to temporary orders obtained ex parte that are not upheld at the DV hearing). In order for a judge to issue orders for joint physical custody, they must find that the other side has rebutted this presumption. Failure to do so is reversible error. Check FC section 3044(b)(1) - (7) which lists some of the possible evidence that a court might properly consider in finding that the presumption against sole legal and physical custody has been rebutted.

Family Code section 3004 defines joint physical custody as follows:

"Joint physical custody" means that each of the parents shall have significant periods of physical custody...."

A 50-50 timeshare is de facto joint physical custody, no matter how the mediator or the court labels it. In my opinion courts are not free call something sole physical custody and then grant such a significant timeshare to the mother in your case without making the required 3044 findings.

Make this point to the judge at your upcoming hearing. Make sure he or she states their findings regarding the rebuttal factors on the record, and if any of the subparts to subsection (b) apply in your favor, point this out. For instance, has Mom completed a batterer's treatment program? [3044(b)(2)]. Has she complied with the court's orders [3044(b)(6)], meaning she has not re-violated the restraining orders? Has there been any further acts of domestic violence [3044(b)(7)]?

Moreover, subsection (e) states: " When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties." Hence, more is needed that a family court services' recommend to overcome the presumption.

Judges sometimes feel - in marginal DV cases in particular - that FC section 3044(1)'s reference to "frequent and continuing contact with both parents" is more important than the DV history and the risks that such orders imply. Mediators sometimes feel badly that 3044 is too strict. Some think that the label is what matters, but many cases (especially in the move-away arena) establish that such labels (i.e., joint custody or sole custody) do not control. We look instead to the actual timeshare.

The law is clear that documented histories of domestic violence cannot be ignored where children are concerned. On the other hand, if the Court makes findings that are substantially supported by the record in your case in Mom's, this is likely within its "sound discretion" to find that the 3044 presumption has been rebutted if there is any evidence to support the trial court decision.

BTW, I recommend you always argue the alternative that best supports your children together with your (and their) personal safety. In other words, just because you can cut off the other parent, don't do it unless it serves your children's interests.

Good luck!

Thurman Arnold, C.F.L.S.

F.T. vs. L.J. (2011) 194 Cal.App.4th 1

F.T. v. L.J., case number D057493, is an important opinion for move-away applicants and their attorneys not just because it clarifies existing law and provides guidance on a host of issues commonly encountered in litigation over these arguably unfortunate situations, but it is going to be widely talked about by the mental health community and will influence how  Evidence Code 730 and Family Code section 3111 evaluators report to the courts because of this appellate court's attention to the details for what various FCS ("family court service" employees) and MHP's ("mental health professionals") opined. It appears that some of them, including the court mediators, took their eye off the ball as established by earlier legal precedent on this topic and the information presented to them.

The parties in this case dated for five or six months and this brief time together produced a bouncing baby boy in January, 2006. For the first thirteen months of his life, the child lived with Mom. On February 17, 2007, however, Mother burned her baby's arm with a hot curling iron "apparently to each him a lesson by showing him how hot it was." Father picked the boy up that evening, saw the injury, and took him to the hospital. Hospital staff called CPS and the police. Criminal charges were filed against the mother.

The child was placed with Dad and Mother's visitations were ordered supervised. Two weeks later he filed a petition to establish paternity and an OSC requesting orders for sole legal and physical custody. The parties were directed to attend custody mediation through Family Court Services but were unable to reach agreement, and so the mediator recommended that the child's primary residence be with Father and that Mother have supervised visits. In April, 2007, the parents stipulated to the recommended order "without prejudice to either party."

Five months later Father filed an OSC request seeking an order allowing him to move with the child to Texas. The parties were ordered back into mediation. At that time following a custody review hearing, the trial court removed the supervision requirement for Mom's visitation. Once again (surprise!) the parties could not agree in mediation, and the mediator recommended that Father have primary physical custody and that he be allowed to move, noting that in November, 2007, Mother had pleaded guilty to one count of simple battery on the child and was given four years' probation, and that she had an eleven year old child from a previous relationship who lived with the paternal grandparents.

For unknown reasons Father's request went off calendar at the time of the scheduled December, 2007, move-away hearing. In February, 2008, he refiled his application and psychologist Yanon Volcani, Ph.D., was appointed to conduct a psych evaluation of the parents and child. He issued a report in September, 2008.

Volcani recommended against the Father's proposed move to Texas, believing that it would interfere with this 2 1/2 year old's bonding with Mother because of the distance (based upon current best mental health opinions on the developmental stages of children). Volcani concluded that telephone, webcam, and other means of contact would not be well suited for a child this age, and had concerns whether Father would "enthusiastically" support the child's relationship with his mother. He also felt that mother had learned from her experience of burning the child, and while her action was 'rash, impulsive, and insensitive' the data did not suggest a "broader abusive intent." He recommended that Mother's timeshare be incrementally expanded.

On September 18, 2008, the trial court adopted Volcani's proposed parenting plan as a temporary order pending an evidentiary hearing, without prejudice, based upon findings that this was in the best interests of the minor. The matter was then lost in the limbo of hearing continuances and further court services mediations ultimately until March 5, 2010.

By now Father was requesting permission to move to Washington instead of Texas, and was intending on marrying a woman living there. Mother had married. Lynn Waldman, a Family Court services counselor, reported to the Court that she had learned that the minor child in 2009 began exhibiting rage, temper tantrums, and other behavioral issues at school and that this three year old was seeing a counselor who couldn't explain "where [Child's] anger is coming from. She interviewed Dr. Volcani but developed incorrect impressions about whether he'd last met with the parents over the two ensuing years after his initial report, and other misconceptions. She recommended against the move to Washington, but stated that Father should remain in his role as the primary caregiver.

In February, 2010, Volcani issued a report supplementing his opinions from September, 2008. Father by then had married his fiance, who herself had two teenagers. Volcani had re-interviewed the parents, the new spouses, and the minor's preschool teacher and therapist. He noted that since the initial evaluation that the parents had been co-parenting in a "relatively cooperative and stable manner." The minor was continuing to have rage issues (e.g., throwing a chair and punching another student) but these were improving. Still, because of the child's age it was difficult to know what was causing it.

On March 5, 2010, the trial court held a hearing but did not permit live testimony and denied the Father's request to move. The court made a number of findings which were not supported by the record. Chief among them was the conclusion that the parents "are not communicating" - when in fact Dr. Volcani actually stated otherwise and that their communications had vastly improved over the two years that had passed. Moreover, without any rational MHP support, the trial court concluded that the evidence proved the child's rage, speaking out in his sleep, and bed wetting all had to do with the parents' lack of a meaningful dialog. The court stated it "feels that the anger is coming from the tension between the two parties."

Maybe, but the court didn't pull this conclusion from any evidence before it in terms of an expert assessment and conclusion that this was the case (the child's own therapist couldn't explain the child's behaviors). Some conclusions apparently exceed what common sense would otherwise suggest.

By the way, what is a three year old doing with a therapist?

Anyway, the Court adopted Volcani's conclusion that the child's healthy development was being impeded, although on different grounds than Volcani had expressed. The court concluded "Father's reasons for the move, that is to join a new wife and family, are not sufficient and a new wife and family in Washington is not a sufficiently necessary reason to move the residence of [Child] to Washington...."

Huh?

Moreover, the Court implied that if Father decided to move anyway that the Court would take custody away from dad and give it to mother, a really bad idea under existing caselaw because of its coercive overtones.

Enter the Established Law of Move-Away

This is what makes this case important - a judge that was justifiably bothered by the impact that the relocation would have on the relationship between a parent (mother) and child understandably struggled not to permit the move. But she was wrong and the appellate court scolds her harshly for it. Her decision was not an exercise of informed discretion.

At the same time, some of the Father's arguments were off-track as well. For instance, he argued that he had a presumptive right to move under authority of Family Code section 7501 which states: " A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." The Fourth Appellate District ruled that 7501 only applies to "final" custody determinations, and not those that are "temporary," following the case of Montenegro v. Diaz (2001) 26 Cal.4th 249. Here the parties had lived under a "stipulation" for two years, but had never reduced it to a final agreement and no court had ever ruled as to any contested matter within the context of an evidentiary hearing. This is a rule that most family law attorneys already know well (which is why the smart ones write their orders to declare the custody agreements favoring their clients as "final" orders). The practical effect of this fact in this case was that "Mother did not have an initial burden to show [that] Child would suffer detriment were he to move with Father to Washington." 

Father also argued that because Mother had been convicted of battering her son, a presumption arose under Family Code section 3044 that she should not have custody of the boy that was possibly "conclusive" if not merely rebuttable. While the idea that the presumption might be conclusive based evidently upon the appalling seriousness of intentionally burning a child is ... creative ... it doesn't track in the slightest what California law says on the subject, and was quickly disposed of by the appellate judges. The justices ruled that "[a] section 3044 finding of domestic violence 'in a family law case changes the burden of persuasion as to the best interests test, but it does not limit the evidence cognizable by the court, and it does not eliminate the best interest requirement."  "Nor does the statute establish a presumption for or against joint custody; again, the paramount factor is the child's health, safety and welfare. And where the section 3044 presumption has been rebutted, there is no statutory bar against an award of joint or sole custody to a parent who was the subject of the order. This is particularly important in move-away cases." In this case the trial court had not made any express findings under section 3044 anyway, so on remand that is a subject the court is directed to pick up.

However, what the trial court did wrong is this:

The father had no burden to prove his move was "necessary". When the trial court opined that "Father's reasons for the move, that is to join a new wife and family, are not sufficient and a new wife and family in Washington is not a sufficiently necessary reason to move the residence of [Child] to Washington...." it supplanted the rule of law with an understandable discomfort with the effects the move would have on Mom's relationship with her son. The issue instead was the best interests of the child, and that decision must be considered in light of the established rule that "the paramount need for continuity and stability in custody arrangements - and the harm that may result from established patterns of care and emotional bonds with the primary caretaker [father here] - weigh heavily in favor of maintaining ongoing custody arrangements." 

Hence, Judge Schall's "order denying Father's motion reveals a misunderstanding of the determination a trial court must make in deciding a move-away motion by a custodial parent. In this case, the trial court, in effect, avoided the ultimate question whether a change in custody would be in Child's best interests were the custodial parent (Father) to move to Washington.... The question ... is not whether the parent may be permitted to move; the question is what arrangement for custody should be made [if and when the custodial parent moves]." A custodial parent is not required to show a planned relocation is necessary.

In other words, the trial court has to assume the plan for the proposed move is a serious one, and has to address the issue of custody as though the move will occur. Moreover, and this is the heart of the decision and the basis for reversal, "[t]o the extent the trial court denied Father's move-away motion with the goal of maintaining the status quo and/or coercing Father to abandon his plan to move to Washington, it erred." [Italics added].

Finally, while the effect of a move will naturally be detrimental to the child's relationship with the remaining parent, this is but one factor for the court to consider and cannot be the sole basis for denying a move. The case of Marriage of LaMusga (2004) 32 Cal.4th 1072 (hand's down the most important move-away case to know), establishes a litany of factors for trial courts to consider in their totality - which is the subject for another Blog.

This case is reversed and remanded to the trial court to evaluate all the LaMusga factors and so exercise an informed discretion before summarily denying Father's request to move.

Okay, sorry, I'm tired now - I'll be back to add some more thoughts!

Thurman W. Arnold, III, C.F.L.S.

Q. My ex-husband and I are involved in a bitter custody dispute. I recently realized he had not changed his Email password, and so I was able to enter his account and review his emails. I found evidence that proves he is using drugs, and I think this puts my son at grave risk. How should I best present this evidence to the Family Law Judge?

A. In my opinion you don't, and I'd advise you to stop snooping his emails no matter how important you think it is for the safety of your child. Beyond the fact that you expose yourself to a civil lawsuit for invasion of the Father's privacy, and have violated various State and Federal laws, you run a couple of other serious risks that may adversely affect the custody outcome you seek - these far outweigh whatever advantage you think the information gives you.

Most importantly as it relates to custody under California law, invading someone's email account and sharing what you find quite arguably constitutes a form of domestic violence. This was established two years ago in a case entitled Marriage of Nadkarni (2009) 173 Cal.App.4th 1483. If permanent restraining orders are issued in a domestic violence action that your ex could choose to file against you when he learned what you'd done (i.e., when you submitted the emails as exhibits filed with the court), a smothering presumption arises against you under  Family Code section 3044 "that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011." In other words, if the family court granted orders against you as a result of this conduct, you may end up assuring you lose your case and hence the ability to safeguard the very persons whom you hope to protect.

In Nadkarni the Husband gained access to the wife's email account and attached copies of her private email between she and others (including her attorney) to show that Mother had lied to Child Protective Services, and that she'd told the children to lie to him as well - and more. Husband argued he had "no choice" but to use these emails because his "kid's safety was at stake" and that he'd accessed the accounts "in sheer panic and desperation" to protect the children. Sound familiar?

Upon discovering this Wife immediately sought temporary restraining orders pursuant to Family Code section 6320.  That section permits courts to issue DV orders to stop behavior that amounts to "disturbing the peace." She alleged that she had never authorized Husband to use the account or given him the password. She also claimed that Husband was using the information to stalk her, and that his activities made her fearful because he'd beaten her badly during the marriage - and was criminally convicted of same.

While a temporary order was issued upon her application, at the hearing for permanent restraining orders her application was denied. The trial court felt that this behavior did not rise to the level of what should be restrained under the Domestic Violence Prevention Act.

Wife appealed and the trial court's interpretation of FC §6320 was reversed. The appellate court ruled "we believe that the Legislature intended that the DVPA be broadly construed in order to accomplish the purpose of the DVPA. Therefore, the plain meaning of the phrase 'disturbing the peace' in section 6320 may include, as abuse within the meaning of the DVPA, a former husband’s alleged conduct in destroying the mental or emotional calm of his former wife by accessing, reading and publicly disclosing her confidential emails." The case was ordered sent back to the trial court to hold a full hearing on the wife's claims. I imagine she won that hearing.

Family law disputants are often acting in "sheer panic" but the ends do not justify the means. You risk blowing yourself up if you attempt to use the material you obtained in any way. Destroy it. I suppose we could come up with exceptions or justifications under extreme facts, where for instance a conspiracy to commit a murder or some other major crime was uncovered, that might trump the prohibition against this type of behavior. But the value of what you have here is insufficient to justify your actions, and the evidence would likely not be admitted anyway over an objection. Even if your husband does not press the advantage you potentially give him by seeking DV orders against you, most judges (and hopefully a lawyer advising you) will question your decision-making abilities once you expose what you did. A lawyer would be ill-advised to submit these emails to the court on your behalf, not merely tarnishing his own reputation but possibly exposing himself to civil liability as well.

Resist your panic, and resist your curiosity. These disputes dial people into temporary insanity and reactivity, and often the result winds up bringing about the very thing they most fear (this dad gaining primary physical custody and reducing your custodial timeshare). There are better ways to skin this cat.

Family Code section 3183, which governs custody mediators who are required by Family Code section 3160 to be offered by all California Superior Courts, has been revised effective 1/1/11 to mandate that any recommendations be "first provided [to] the parties and their attorneys, including counsel for any minor children, ... in writing in advance of the hearing." The court is required to confirm that this has occurred before commencing with a custody for visitation hearing. It also changes and presumably unifies what courts and litigants call these mediators, as quoted below.

Old section 3183 relied solely on local court rules to determine when and to whom the recommendation would be delivered, and new 3183 retains the same language. This is the new portion of the statute:

"... if the mediator has first provided the parties and their attorneys, including counsel for any minor children, with the recommendations in writing in advance of the hearing. The court shall make an inquiry at the hearing as to whether the parties and their attorneys have received the recommendations in writing. If the mediator is authorized to submit a recommendation to the court pursuant to this subdivision, the mediation and recommendation process shall be referred to as 'child custody recommending counseling' and the mediator shall be referred to as a 'child custody recommending counselor.' Mediators who make those recommendations are considered mediators for purposes of Chapter 11 (commencing with Section 3160), and shall be subject to all requirements for mediators for all purposes under this code and the California Rules of Court. On and after January 1, 2012, all court communications and information regarding the child custody recommending counseling process shall reflect the change in the name of the process and the name of the providers."

While this creates uniformity among all California Family Courts in requiring the parties and their lawyers receive the report "in advance" of the hearing, it begs the question of "when." The day of? The day before? Ten days prior? Evidently at the moment this is still left to local rule or a judge by judge policy since the question is left to the discretion of the judge.

Many smaller courts are forced to rely on outside counselors to provide mediation services. This is true in Blythe, for instance, and I believe in Joshua Tree. Larger courts have in-house teams of salaried mediators. I imagine the statute is written to bring the courts with small budgets in line with state-wide practices of giving advance notice of recommendations, and to call all of these workers by the same title.

T.W. Arnold, III

    "(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

    (b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

    (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.

If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."

Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules.  It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings.  It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia. 

It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully.  The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere).  There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at www.DesertFamilyMediationServices.com.
  
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true).  Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court.  Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise. 

The purpose of today's Blog is to introduce you to section 217 and the new changes.  I will follow up with more articles in coming weeks.  Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers. 

• Will it be useful to the court to permit questioning of this child?
• What will be the risks and benefits to a particular child of being permitted to testify in favor or against a parent?
• How shall testimony occur?  Will it be allowed in open court, or in the judge's chambers? 
• Will there be uniformity between jurists or branches or counties in terms of court policies, or will it just be every department decides for itself how and what rules apply?
• Who besides the judge will be allowed to ask questions of the child?  This includes questioning outside the court proceeding, say when a third party is appointed to obtain the information for the court.
• What type of cross-examination will be permitted, since cross-examination is essential to assuring due process within the adversary court setting by testing the credibility and basis for testimony?
• Will any safety measures be adopted, and will there be any sensitivity to the potential consequences to children once kids are drawn into testifying, since they can't possibly have any understanding of how such testimony will affect their parental relationships with the nonfavored parent?
• Should different standards be applied in deciding to allow testimony from children about their parental preference when those requests are made after therapist based or similar recommendations come out and disfavor a party, as opposed to before they recommendations are known?  After all, what is to stop every disgruntled parent from demanding that their child state their preference (which that parent doesn't like or accept) in every case?
• What testimonial facts will be relevant?  A child's stated preference is one thing, but shouldn't a party or their attorney then be permitted to ask questions about parental coaching?  Spoiling and buying kid's loyalty?  Whether the child wants to live with mom or dad because they don't impose rules in their home?
• Does the court even have enough information to answer the threshold question of whether a child should be permitted to testify without first seeking outside assistance?

In order to succeed in achieving a client's goal of hearing from children when it serves that parent's agenda or perceptions, or in limiting either a child's input or damage to the child by having to voice a preference for one parent over another, custody lawyers and self-represented parties will do well to consider these questions in advance of making requests to the court.

It will be interesting to see if some judges effectively nullify the statutory mandate by imposing roadblocks or alternate routes that keep the questioning outside the family court proceeding itself.

The following text was taken from the AFCC materials provided in Denver.  The DSM-V has not been adopted, nor is there any agreement that the following diagnosis should be added.  I will provide commentary in a later Blog.

TWA

Proposed Text for Parental Alienation Disorder in DSM-V

DIAGNOSTIC FEATURES

The essential feature of parental alienation disorder is that a child - usually one whose parents are engaged in a high-conflict divorce - allies himself or herself strongly with one parent (the preferred parent) and rejects a relationship with the other parent (the alienated parent) without legitimate justification. The primary behavioral symptom is the child's resistance or refusal to have contact with the alienated parent (Criterion A).

The behaviors in the child that characterize parental alienation disorder include a persistent campaign of denigration against the alienated parent and weak, frivolous, and absurd rationalizations for the child's criticism of the alienated parent (Criterion B).

The following clinical features frequently occur in parental alienation disorder, especially when the child's symptoms reach a level that is moderate or severe (Criterion C). Lack of ambivalence refers to the child's belief that the alienated parent is all bad and the preferred parent is all good. The independent-thinker phenomenon means that the child proudly states the decision to reject the alienated parent is his own, not influenced by the preferred parent. Reflexive support of the preferred parent against the alienated parent refers to the pattern of the child's immediately and automatically taking the preferred parent's side in a disagreement. The child may exhibit a disregard for the feelings of the alienated parent and an absence of guilt over exploitation of the alienated parent. The child may manifest borrowed scenarios, that is, rehearsed statements that are identical to those made by the preferred parent. Also, the child's animosity toward the alienated parent may spread to that parent's extended family.

The diagnosis of parental alienation disorder should not be used if the child's refusal to have contact with the rejected parent is justifiable, for example, if the child was neglected or abused by that parent (Criterion D).

ASSOCIATED FEATURES

Parental alienation disorder may be mild, moderate, or severe. When the parental alienation disorder is mild, the child may briefly resist contact with the alienated parent, but does have contact and enjoys a good relationship with the alienated parent once they are together.

When the parental alienation disorder is mild, the child may have a strong, healthy relationship with both parents, even though the child recites criticisms of the alienated parent.

When the parental alienation disorder is moderate, the child may persistently resist

contact with the alienated parent and will continue to complain and criticize the alienated parent during the contact. The child is likely to have a mildly to moderately pathological relationship with the preferred parent.

When the parental alienation disorder is severe, the child strongly and persistently resists contact and may hide or run away to avoid seeing the alienated parent. The child's behavior is driven by a firmly held, false belief that the alienated parent is evil, dangerous, or worthless.  The child is likely to have a strong, severely pathological relationship with the preferred parent, perhaps sharing a paranoid worldview.

While the diagnosis of parental alienation disorder refers to the child, the preferred parent and other persons the child is dependent on may manifest the following attitudes and behaviors, which frequently are the major cause of the disorder: persistent criticisms of the rejected parent's personal qualities and parenting activities; statements that influence the child to fear, dislike, and criticize the alienated parent; and various maneuvers to exclude the rejected parent from the child's life. The behavior of the preferred parent may include complaints to the police and child protection agencies with allegations about the rejected parent.

Parental alienation disorder may be the basis for false allegations of sexual abuse against the alienated parent. The preferred parent may be litigious to the point of abusing the legal system. The preferred parent may violate court orders that are not to his or her liking. Specific psychological problems - narcissistic personality disorder, borderline personality disorder, traumatic childhood experiences, and paranoid traits - may be identified in these individuals.  Also, the rejected parent may manifest the following attitudes and behaviors, which may be a minor or contributory cause of the disorder: lack of warm, involved parenting; deficient parenting skills; and lack of time dedicated to parenting activities. However, the intensity and duration of the child's refusal to have contact with the rejected parent is far out of proportion to the relatively minor weaknesses in the rejected parent's parenting skills.

Although parental alienation disorder most often arises in the context of a child custody dispute between two parents, it can arise in other types of conflicts over child custody, such as a dispute between a parent and stepparent or between a parent and a grandparent. Sometimes, other family members - such as stepparents or grandparents - contribute to the creation of parental alienation disorder. On occasion, other individuals - such as therapists and child protection workers - contribute to the creation of parental alienation disorder by encouraging or supporting the child's refusal to have contact with the alienated parent. Also, parental alienation disorder does not necessarily appear in the context of divorce litigation, but may occur in intact families or years following the divorce.

DIFFERENTIAL DIAGNOSIS

It is common for children to resist or avoid contact with the noncustodial parent after the parents separate or divorce. There are several possible explanations for a child's active rejection of contact. Parental alienation disorder is an important, but not the only, reason that children refuse contact.

In the course of normal development children will become polarized with one parent and then the other depending on the child's developmental stage and events in the child's life. When parents disagree, it is normal for children to experience loyalty conflicts. These transitory variationsin a child's relationship with his or her parents do not meet criteria for parental alienation disorder because they do not constitute "a persistent rejection or denigration of a parent that reaches the level of a campaign."

If the child actually was abused, neglected, or disliked by the noncustodial parent or the current boyfriend or girlfriend of that parent, the child's animosity may be justified and it is understandable that the child would not want to visit the rejected parent's household. If abuse were the reason for the child's refusal, the diagnosis would be physical abuse of child or sexual abuse of child, not parental alienation disorder. This is important to keep in mind because an abusive, rejected parent may misuse the concept of parental alienation disorder in order to falsely blame the child's refusal of contact on the parent that the child prefers. In shared psychotic disorder, a delusional parent may influence a child to believe that the other parent is an evil person who must be feared and avoided. In parental alienation disorder, the alienating parent may have very strong opinions about the alienated parent, but is not usually considered out of touch with reality.

When parents separate or divorce, a child with separation anxiety disorder may become even more worried and anxious about being away from the primary caretaker. In separation anxiety disorder, the child is preoccupied with unrealistic fears that something will happen to the primary caretaker, while the child with parental alienation disorder is preoccupied with unrealistic beliefs that the alienated parent is dangerous.

It is conceivable that a child with specific phobia, situational type, might have an unreasonable fear of a parent or some aspect of the parent's household. A child with a specific phobia is unlikely to engage in a persistent campaign of denigration against the feared object, while the campaign of denigration is a central feature of parental alienation disorder.

When parents separate or divorce, a child with oppositional defiant disorder may become even more symptomatic - angry, resentful, stubborn - and not want to participate in the process of transitioning from one parent to the other. In oppositional defiant disorder, the child is likely to be oppositional with both parents in a variety of contexts, while the child with parental alienation disorder is likely to focus his or her negativism on the proposed contact with the alienated parent and also to engage in the campaign of denigration of that parent.

When parents separate or divorce, a child may develop an adjustment disorder as a reaction to the various stressors related to the divorce including discord between the parents, the loss of a relationship with a parent, and the disruption of moving to a new neighborhood and school. A child with an adjustment disorder may have a variety of nonspecific symptoms including depression, anxious mood, and disruptive behaviors, while the child with parental alienation disorder manifests a specific cluster of symptoms including the campaign of denigration and weak, frivolous rationalizations for the child's persistent criticism of the alienated parent.

Parent-child relational problem (a V-code) is the appropriate diagnosis if the focus of clinical attention is on the relationship between a child and his or her divorced parents, but the symptoms do not meet the criteria for a mental disorder. For example, a rebellious adolescent may not have a specific mental disorder, but may temporarily refuse to have contact with one parent even though both parents have encouraged him to do so and a court has ordered it. On the other hand, parental alienation disorder should be the diagnosis if the child's symptoms are persistent enough and severe enough to meet the criteria for that disorder.

DIAGNOSTIC CRITERIA FOR PARENTAL ALIENATION DISORDER

A. The child - usually one whose parents are engaged in a high-conflict divorce - allies himself or herself strongly with one parent and rejects a relationship with the other, alienated parent without legitimate justification. The child resists or refuses contact or parenting time with the alienated parent.

B. The child manifests the following behaviors:

• a persistent rejection or denigration of a parent that reaches the level of a
• campaign
• weak, frivolous, and absurd rationalizations for the child's persistent criticism of the rejected parent

C. The child manifests two or more of the following six attitudes and behaviors:

(1) lack of ambivalence

(2) independent-thinker phenomenon

(3) reflexive support of one parent against the other

(4) absence of guilt over exploitation of the rejected parent

(5) presence of borrowed scenarios

(6) spread of the animosity to the extended family of the rejected parent.

D. The duration of the disturbance is at least 2 months.

E. The disturbance causes clinically significant distress or impairment in social academic (occupational), or other important areas of functioning.

F. The child's refusal to have contact with the rejected parent is without legitimate justification. That is, parental alienation disorder is not diagnosed if the rejected parent maltreated the child.

• If you can, try to research CCP § 1008, including looking at some legal treatise or the reported appellate decisions that mention it
• New or different facts don't generally include things you forgot to mention, unless you have some really credible explanation of why you forgot
• You must explain to the Court what you learned, how and when you learned it, why you didn't learn it earlier, and why these new or different facts matter enough that the Court should render a different outcome.  If the other party withheld facts that you became aware of only after the hearing, you need to describe your reasonable diligence in having attempted to first get all the facts
• New facts are not the same as different facts.  Be specific
• Telling the judge you just think she was wrong is rarely helpful - judges know they will be wrong some of the time, and they are trained as much to just make a decision as to get it right (clearly they want to get it right).  Most of us don't like being told we are wrong and that is rarely a useful persuasive tool.  Instead, focus on the justice or injustice of the situation and be humble
• Explaining that you made a mistake without more is also risky, because lawyers and parties do make mistakes in presenting their cases but the law favors finality in decision-making.  Your  mistake needs to have been a reasonable one. 
• Always consider combining your reconsideration request with a request for relief under Code of Civil Procedure § 473, which is a very important statute that covers relief from orders or judgments that result from your inadvertence, surprise, mistake, or reasonable neglect

In your situation the question will be:  If you knew 10 days before the hearing that your time had been cut back, why didn't you mention it?  If you did mention it, then the Court considered your evidence and ruled against you, so this would not be new information. 

Also, how different would the outcome have been if the Court had considered or known of the cut backs in your work?  For instance, if those cut backs are partial and your income is 15% less than the Court supposed, this may not seem so important to the Judge that she thinks she needs to correct the unfairness of the result.  If it is 40% less, she might.  There are no hard and fast rules that can be applied with consistency.

It is quite common for clients to wind up hiring attorneys after they attempted to handle their case on their own, and it blew up at the hearing, and now they need desperately to get more or better information in front of the judge.  It is very difficult to "un-ring the bell." 

When these things happen they are a good lesson of why the adversarial court process is to be avoided whenever possible, and of the importance of finding and listening to a competent lawyer early on in your case.

Grandparent Custody and Visitation

Grandparent Custody Statutes

Q.  Can the primary physical custodian move away to another city even though my children attended 4 schools in 5 years?

A.  The primary custodian cannot move away if you can convince the Riverside judge that the child/children will suffer a detriment from the move, which is independent of the interference with your custodial time share.  Is any therapist, mediator, child appointed attorney, or evaluator looking at this case?  A 13 year old child is old enough to express a meaningful preference under Family Code section 3042, and you need to get these wishes to the court.  The court evidently is uncomfortable with the move.  You need to ask one or all of these folks be appointed, and you need to ask that legal and physical custody be awarded to the two of you jointly, or solely to you in the alternative.  Please see what I have written here as it may help guide you:

http://www.thurmanarnold.com/Practice-Areas/Relocation-and-Move-Away.aspx

Q.  My Neice has a 1 yr old son. She is always gone on drugs and alcohol. Her mother is basically in control of the boy. She cares for him 24/7, takes him to doctors...my niece doesn't seem to care for him. I told my sister in law she needs to get custody of her grandchild ASAP. She is afraid if she calls they will take him away from her. He is in a loving home, has own room and all the care he needs. We would take him but I have 2 boys myself, no room. I know he would be in the "system" until she legally adopts him...what do we do?

Q.  My girlfriend is having our baby in September, but I don't know if I am the dad.  I really care about her but a friend told me that I need to be careful because if I go to the hospital with her, I have to pay support no matter what.  Is this true?  What is she files a paternity action?

Keith S.

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Keith:

California law encourages hospitals to get a signed Voluntary Declaration of Paternity ("VDOP") from the male who appears to be a parent at a time when a mother gives birth. This is something that is presented to proud fathers at the time of a child's birth, along with information about legal obligations, and that they are asked to sign.  There may be a lot of guilt and confusion going on at this time. Hopefully there is simply pride.

The public policy is that the State wants to identify biological fathers early on, and to encourage them to step up to the plate both financially and in terms of providing emotional parenting to children. It is also assumed the male who shows up for the birth is most likely the bio dad, and that the parties know it. Obviously, it is not always true and sometimes a man does not turn out to be the actual father. Sometimes he believes he is, and sometimes he is told he is.

Children need their biological parents; this is  critically important. Any bio parent who shirks his responsibility out of financial or emotional selfishness lacks integrity, and their decision has serious consequences on other lives that a true parent will recognize and regret one day, unless they are a sociopath or lack any conscience.

BUT the signing of a VDOP has serious important legal consequences. It is equivalent to a Judgment of Paternity, which may only be set aside for a limited time. While children deserve parents, whether a man that has sex with a mother before a child is born should be determined based only upon that, and their sense of moral responsibility, and therefore to be adjudged a responsible parent also raises integrity and fairness questions in favor of the alleged parent. California law on this subject means well, and may statistically result in the proper outcome more times than not, in my view innocent men who turn out not to be biological parents have rights too. The law says so too, and the question becomes whether you or not you waive your rights to object in a timely fashion.

So, please understand, if you sign a voluntary declaration of paternity next month, you may be adjudicated the legal father of this child regardless whether you are the bio parent. That has privileges and it has burdens. You will have the privilege (assuming the mother does not challenge you before two years after the child's birth) of being a "legal parent" whatever the DNA turns out to be, including rights to custody, visitation, companionship, etc. You will also have the legal financial burdens which I describe under my support obligations FAQ's. For a long, long time, and even possibly forever. 

Family Code section 7573 establishes the effect of a VDOP.   Section 7575 allows you to rescind that declaration but only if you do so within 60 days after birth of the child. Otherwise, after birth, you have a 2 year window to seek paternity DNA testing and an order that you are not, in fact, the bio-dad. The court has discretion to find you are the de facto parent even if you are not bio-dad, however, so even if DNA is conclusive and you are not otherwise the father - absent another man ready, willing, and able to step up, you may find yourself stuck.

These are weighty matters.  In my experience, and in most judge's experiences, woman know who the dad is. Still, there are many reasons why a mother might lie - even including trying to insure that some bad person is never adjudicated the dad. I would never judge your girlfriend and have no opinion on what your status truly is.

So, do what your heart tells you you are the dad, fine. But consider getting DNA testing immediately before you, or the child and you, form any attachments and that way there will never be any question - nor any need to hire me to dispute paternity! 

Best of luck and, hopefully, congratulations!

I am a mom in San Diego County. There are court orders out of El Cajon for joint legal custody and sole physical to me. The old orders said I could move anywhere within San Diego County. I just changed our son's school to north county San Diego. I want to remarry, and have been living with my fiance for 4 years. I believe the schools are better here. Now our son's father is trying to force me to keep our son in the old school south of here, or to take custody.  He says the school our son was in is better. I would have to drive 70 miles for school drop off and pickup.

I have no money for attorney fees because my last lawyer had only a year's experience, and she upset the judge and now I am out $10,000. We have a hearing in 3 days. Please help.

Mellissa

Attorney Fees Question/Assuming There Are Any Further Hearings

You are requesting attorney's fees because the issues involved are some of the most complex in this area of the law (parent relocation), and you are entitled to be on a parity with Mr. Tr xxx, who has been able to retain competent counsel. 

Specifically, tell the Court your request is also made under authority of Alan T.S., Jr. (4/2/09) 172 Cal.App.4 ^th 238 and In re Marriage of Keech (1999) 75 Cal.App.4 ^th 860. Tell the Court that you are in pro per but do not want to be, but that obligation of supporting the child from this marriage plus the financial burden of your other handicapped child, makes it impossible for you to obtain legal representation without an order that Mr. Txxxx pay these fees.

1)      Establish that the final, current order, is for joint legal and sole physical custody to you.  Mr. Txxxx  rights are for visitation only, but not custody, absent a modification of the current orders upon a showing by him of a material change of circumstances. Your move and the child’s new school is not presumptively, without more, a sufficient change of circumstances to warrant a change of custody even assuming he asked for it (I don’t know if he has).

2)      As the parent entitled to the day to day supervisory control of the child per FC section 3007 (defines sole custody), you had a presumptive right to relocate. This is the same right codified in FC section 7501. You have custody; dad has visitation rights.  (Btw, his visitation rights are not being negatively impacted by the move, by his own admission, since his objection only involves relative school ratings).

3)      As to the joint legal custody label, this only grants each of you the rights under FC section 3003 (decisions regarding health, education and welfare) during your respective custody and visitation times.  FC section 3083. It is does not obligate you and he to agree on schooling absent a court order saying you had to first, per 3083, and it must be specific and mention “schooling” (I assume this is not the case).

4)      Even though you were not required to do it, you gave dad notice per FC section 3024 that you were moving north and changing the child’s schooling. F’s atty intimidated you into filing a motion for permission to make the move, when they probably were the one’s obligated to file a motion to restrain the change, and so you have acted in good faith. This is particularly true given the court order from (the ealier date) stating you can relocate anywhere within San Diego County.

5)      It is very important if their responsive declaration did not check the change of custody box, and if their paperwork only asks to restrict the change in schools – you need to be sure you are right about this before making the argument - BUT if they are not seeking a modification of custody, then you have the right to move [7501] and change schools [3003/3083] and there should be no need for any further hearings and your application must be granted.

6)      Next, ONLY IF THEY’HE REQUESTED A CHANGE OF CUSTODY, then the next analysis is: That this is not a de facto joint parenting agreement. This not a Burgess footnote 12 case (which requires a “ de novo” best interests of the child hearing only where there is true parenting agreement). Here the timeshare numbers become important – you want him as low as reasonably possible without sounding incredible. This is a straight Burgess situation, and therefore you have the presumptive right to move and you do not need to show that the your move was “necessary” or even in good faith, except with the added benefit to you that Burgess involved temporary orders and so the court had to do a best interest of the child analysis, while your case involves “permanent” orders and so that is not a ground for an evidentiary hearing (best interests was previously decided in your favor and the question will be not be reviewed again absent Dad showing a change of circumstances).

7)      Changing schools is not an adequate CoC as recently held by the California Supreme Court in Brown and Yana (2006) 37 Cal..4th 947. Here, like you, a parent with sole physical custody sought to move a much greater distance from the dad – Las Vegas. Dad’s objection was that the schools in LV were inferior. He wanted an evidentiary hearing before the move would be allowed, and he sought a change of custody to himself if Mom moved anyway. The trial court correctly refused to allow an evidentiary hearing because the Father had failed to allege sufficient facts showing a detriment to the child by simply claiming the relative merits of schools. Courts won’t step into that qualitative battle. Instead, F needs to show that you are attempting to frustrate contact, which clearly is not the case, or some other “detriment” in his responsive declaration. His failure to do so means he is not entitled to an evidentiary hearing.

8)      Since he is not entitled to an evidentiary hearing, even though a mediation is appropriate in the next month, it would be improper for this court to issue any orders that restrain your son’s ability to start school on 8/20/09 as planned.

9)      Father has failed to meet his burden.You need attorney fees to retain competent counsel for any further hearings.

10)    Finally, under FC section 3044 there is a rebuttable presumption that dad is not a fit person to be a joint custodial parent because of the DV orders.

Best of luck on this. If you get a court order for attorney fees, hire someone!

Thurman Arnold, CFLS