California Family Law Attorney
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December 20, 2010
  2011 REVISIONS to the California FAMILY CODE: "CHILD CUSTODY RECOMMENDING COUNSELORS"
Posted By Thurman Arnold, CFLS

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.

Continue reading "2011 REVISIONS to the California FAMILY CODE: "CHILD CUSTODY RECOMMENDING COUNSELORS"" »

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December 12, 2010
  ELLEN KELLNER'S CO-PARENTING BOOK Inspired Me: How Can I Get My Ex Into Counseling?
Posted By Thurman Arnold

Q. I found Ellen Kellner's book "The Pro Child Way, Parenting With An Ex" on your website some weeks ago, and ordered it from Amazon.com. I have been eagerly reading it, especially because of the up-coming holidays. I am wondering if you can tell me, is there any way in California to force my ex-husband to do some child-centered counseling with me? I think we could start talking better if we were in a safe environment.

Rebecca in San Dimas


A. Rebecca, I am so pleased that you are taking the time to read Ellen's book! She is a dear friend of mind, and a tireless proponent of co-parenting techniques for the sake of children. I have copies of her book which I give away to my clients, since finding resources for dealing with divorce and parenting issues is crucial to moving on. (I recently had a concerned grandmother waiting for me to finish my work with her son, and I noticed the book seemed stuck to her hand!)

California Family Code section 3190 authorizes Family Courts to require parents (or any other party) who are involved in a custody or visitation dispute to participant in outpatient counseling for up to a year.

Unfortunately, the court needs to first make findings that the dispute "poses a substantial danger to the best interests of the child" and that counseling is in the best interests of the child. It is quite ironic that in order to get counseling the dispute must reach such a magnitude of dysfunction. Custody proceedings must be pending, but even if they aren't it should be sufficient to just file a motion or OSC, allege facts that meet section 3190's requirements, and request the orders. In cases involving a history of domestic violence or abuse, this counseling can be ordered separately per FC section 3192.

I am so pleased for you and your children that you are motivated enough to investigate these options. They are well-served.

BTW, Ellen is available for phone and possibly Skype based consults if you think it might be helpful to meet with her for further ideas and direction.

Happy holidays to you and your family!



~ T.W. Arnold, CFLS ~

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December 01, 2010
  New Family Code Section 3042 - Will It Serve to Accelerate the GENDER CUSTODY WARS?
Posted By Thurman W. Arnold, III, CFLS

Child Testimony Concerning Parental Preference

AB 1090, sponsored by Assemblywoman Fiona Ma, becomes law on January 1, 2011 as revised Family Code section 3042. It directs courts to allow children age 14 or over to testify about their custody preferences except where judges make findings on the record why they will not permit it beginning January 1, 2012. The legislation also directs the California Judicial Council to develop policies and procedures for examining child witnesses in the meantime.

Is section 3042 a good idea? On balance I strongly doubt it. The likelihood of misusing this new license, given how we humans tend to behave when we are steeped in relationship conflict, will for many parents be just too powerful a force to avoid. Parents will feel invited to have discussions that were previously considered inappropriate under the guise of fulfilling a perceived legislative mandate to inquire into childhood preferences. And it won't stop with "Johnny, who would you rather live with, your mom or me" but will inevitably expand into questions about what underlies Johnny's preferences. California is theoretically a no-fault state at least in terms of grounds for dissovling marriage, but fault has always lurked beneath the surface in custody contests. Newly enacted section 3042 takes this to a new, much messier level that potentially assaults children directly as potential co-conspirators with parents who have no concept of age appropriate boundaries. The legislation is silent on creating resources to help parents understand that children are not supposed to be one parent's best friend after the other parent leaves the family.

Which is not to imply that no children will benefit from it. Still,....

While it is true that children are routinely blocked from meaningfully expressing important preferences in custody cases under current law before this change, I have to observe that in my years of family law practice I have had many clients (both mothers and fathers) who I have either witnessed or suspected of pressuring children in alienating ways to express a preference in that parent's favor (and I also attempted to put a stop to it by explaining the emotional damage this may cause). I have seen many more parents on the opposing side who do so, and their lawyers whom I believed encouraged such activity.

What happened at father's house, at mother's house, with their new spouse or girlfriend or boyfriend, and so much more is just too enticing a subject for some parents and now that information will be considered relevant by parents who may feel they are being invited to obtain children's statements of parental preference. These parents will attempt to introduce such information to the court, whether in their own declarations and testimony or through the voice of the kids. Children will be questioned and interviewed by parents, and enlisted as co-participants in particularly the high conflict parenting struggles. If the parents are unable to maintain a sensible decorum in managing discussions with their children, how can we expect children not to be cast adrift on the seas of emotion that accompany divorce and custody contests?

Under the new statute either minor's counsel, an evaluator, investigators, or mediators who provide custody recommendations to the court, must indicate to the Judge whether the child wishes to address the court - and the judge is also required to ask this question. Either parent's attorney may also make that representation to the Court, which then triggers the issue. It is hard to imagine that any attorney or self-represented party who finds themselves on the otherwise loosing end of a custody evaluation or recommendation will not make this request. Indeed, it will be attorney malpractice not to do so!

An unfortunate consequence of this new statute will be to aggravate what I see as the gender wars between mothers and fathers in custody disputes. Some mothers believe that they are by nature better suited to child rearing, and the reality is that many do serve their children very well as the primary psychological parent particularly in early life. Some fathers believe that they are disenfranchised by such views, and make a conscious decision to step out of children's lives "until they get older". Any battle is unfortunate, and also creates victims. We all decry in theory the lack of fathering in our society.

Since mothers are statistically in greater control of children than fathers (again, perhaps for good and valuable reasons), the effects of this statute will fall more heavily in favor of mothers and so against fathers - which is possibly, but not of a certainty, one reason why Assemblywoman Ma may have introduced it. More likely, the idea sounded better than the reality may become.

I suspect I will be accused of gender bias in saying this. But because mothers more commonly find themselves as children's primary parents for much of children's adolescence (sometimes by default since some fathers don't seem willing to assume the role or take on a greater parenting responsibility) this statute will have an effect of encouraging behaviors that promote manipulating discussions with children about which parent they should prefer. Few parents of either sex will likely resist the challenge of not overstating their child's supposed desires in their own favor.

Courts and the Judicial Council will need to develop policies and procedures that minimize the negative impacts of this new battlefield on our children. There are certain to be child casualties, however, and I am left wondering which outweighs the other: the costs to children of conflicted parents, or the benefits?



T.W. Arnold


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April 14, 2010
  How Do I Get the Court to Order My Husband to be HAIR FOLLICLE tested?
Posted By Thurman Arnold

Q. I know my ex-husband uses drugs and I fear for the safety of our children. We are having a custody dispute. Is it possible to have him give a hair follicle sample for drug testing? How do I get a court order for drug testing?


A. It is not possible in California to force another parent or custodian of minor children to take a hair follicle test for drugs or alcohol absent their agreement to do so.

Family Code section 3041.5 is the direct authority for a court's ability to order drug testing. However, it contains an important limitation: "If substance abuse testing is ordered by the court, the testing shall be performed in conformance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees."

These procedures and standards do not presently include hair follicle testing and so a Court cannot order it over a party's objection. As a practical matter, California Family Courts order urine testing. The effectiveness of urine testing is limited because traces of different substances remain in body for differing amounts of time - traces of drugs remain in hair much longer.

However, hair follicle testing will be ordered where both parties agree or stipulate to it. This is more common than you might expect.

Sometimes this occurs at a court hearing where the Judge turns to each party and says something like "Mr. Jones, would you be willing to take a hair follicle test?" More often the attorney for the accusing party will say something like "your Honor, we are hoping that Mr. Jones will take a hair follicle test so we can put this issue to rest." The Court ask Mr. Jones if he will agree. Nine times out of ten, in my experience, Mr. Jones will say "sure your Honor, I have nothing to hide and she is making this all up." NOT!

Why would Mr. Jones agree to do this, when the Court otherwise is powerless to order it? Mr. Jones may not know his legal rights. Mr. Jones may have read on the internet that he can mask his substance abuse and beat the drug testing by using products he can buy on the web or at a health food store. Mr. Jones may have friends who said they beat the test. Mr. Jones may just feel like if he doesn't agree, he looks guilty. Mr. Jones may have recently cut his hair short or shaved his head - which is a good reason to ask the Court to order that Mr. Jones not visit a barber until the hair sample is taken (hair samples can be taken from various other body areas). Mr. Jones may himself be in denial, and so might lie easily from habit. Clients say and do all kinds of amazing things under the pressure of a courtroom full of eyes watching him (or her).

And, Mr. Jones may think that his hair sample will come back clean because he is not presently "using." Or he used so long ago the drug test will be negative - and he may or may not be right on this point. Traces of drugs may remain in the hair for up to six months. Some Valium to help one sleep taken 3 months ago may be forgotten.

Its a really bad idea to agree to hair follicle testing unless you are absolutely convinced there could be no traces of drugs in your body. Don't trust that masking agents will protect you.

If you use drugs or abuse alcohol, you need to tell your attorney the truth of your situation; most attorneys want to help you overcome that problem early on in a case by directing you to recovery resources and help. Custody disputes actually present an opportunity for people to deal with their addictions (the same ones that may have led to the breakup).

I once had a client who insisted her husband was using cocaine regularly, but she claimed she never used it. In her declaration we set forth much evidence of his continued using in excruciating detail. He admitted to having had used in the past, but said he had stopped a few months before. He said Mom had not. (This was evidently true).

At our hearing the Court asked both parents if they would agree to take a hair follicle test. Having adamantly stated under penalty of perjury that she never used, my client agreed and I allowed her to hair follicle test because she had insisted (in answer to direct questions to her first, in private) that she never used cocaine. After all, hair follicle tests are great if you are clean!

To my amazement her drug test results came back "dirty" for cocaine, as did her husband's. He now appeared to have been truthful, and she obviously had lied under oath. When I asked what she was thinking her answer was "oh, I used it on my birthday three months ago and was sure that that one time would not show up." The facts turned out to be that she knew all about his drug use because she had used alongside him.

The family judge was really unhappy with her. Because she lied to the Court, she lost all advantage in the custody proceedings that we'd gained, and the judge viewed her as untrustworthy from that day forward. And so did I. This also adversely affected the amount of child and spousal support she received. Her husband ended up looking like the good guy, although I suspect he continued to use. Hair follicle tests don't indicate the dates of use, but merely that someone used at some time during some period.

If you have been using drugs, don't agree to a hair follicle test unless you are clean. DO NOT LIE TO YOUR ATTORNEY. While we won't suborn perjury, we will protect you from your doing so, but we need all relevant information in order to protect you from you - which is one of our jobs. Ethical lawyers will not aid and abet a client in making false or misleading statements. That does not mean we will "rat" you out.

It is possible to get a confidential hair follicle test from an independent laboratory (see bottom of page for self-testing ideas) before you write a declaration or go to a hearing, and then present your clean test to the judge at that hearing. If you find the test is positive for drugs, you don't need to share it with the Court or anyone else. But in that situation an ethical attorney will not let you make false statements either. You don't need to volunteer certain evidence, but once you make a statement it better be true.

In my experience there is always a positive solution presented by bad facts when you are truthful. With drug abuse situations, one solution is a commitment to becoming clean and sober. Judges appreciate people telling the truth who are taking steps to overcome these sorts of challenges. However, if you aren't done using, then you need to accept the reality of certain consequences.

By the way, for "legal" California pot-smokers, see this Guest Blog about a 2012 appellate court decision that suggests the the pendulum is swinging in your favor (or at least not as reactively against you!)


T.W. Arnold

If you don't know how you might test in advance, or want to "dip stick" the other parent, you might purchase one of these.

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April 14, 2010
  Will the Court DRUG TEST My Wife?
Posted By Thurman Arnold

Q. How do I get a Court Order for drug testing my wife? I know she is using and I fear she is a danger to our son.


A. Your argument for drug and alcohol testing of parents or others having custody or visitation with children in California is found in Family Code section 3041.5. The statute is only five years old, and before it enactment the only practical way to get drug testing was by the other party's agreement.

It is possible to convince a family court that the other parent should be tested for drugs or alcohol where you present sufficient evidence that there "is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship." FC section 3041.5(a).

This evidence includes but is not limited to proof that the other person has been convicted in the past five years of the illegal use or possession of a controlled substance.

The other important statute you need to cite to the Court is Family Code section 3011(d), which speaks to the requirement in determining what custody and visitation is in the best interests of children courts must consider evidence of the habitual use of controlled substances (non-prescription or otherwise) or alcohol - but first you must submit "independent corroboration".

In my experience what often happens when drug allegations are made is that Family Judges prefer to get the parties to agree to drug testing and only order it when they will not (or when recommended by family court services or a mental health professional). If the parties will not agree, judges may order the testing as long as there is some corroboration that a potential drug issue exists. I am always amazed that people who are using (who are "dirty" as we say) will agree to test when they may not need to because there is insufficient independent proof of the use of drugs. At the same time, maybe this is a good time to "stop"?

Please see my blog on hair follicle testing.



T.W. Arnold

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December 20, 2009
  GRANDPARENT CUSTODY in California.
Posted By Thurman Arnold

Grandparent Custody and Visitation

There are a number of important aspects to nonparent custody and visitation which deal with the rights of people who are not biological or legal parents of children to assume day to day responsibility for them, or merely to be in their lives when legal parents object (often the son or daughter in law). This circumstance sometimes occurs within the context of grandparent custody/visitation, or step parent visitation rights. It also may include siblings, other relatives, and foster parents.

Family Code section 3040 creates an order of preference for custody of children which begins with custody to parents. This parental preference is a fundamental policy of California child custody law, and its application is limited only by the best interests of children where parental custody can be demonstrated to be detrimental to a child.

This public policy has unfortunate aspects. Some parents act as if children are property, and believe that they are the only qualified decision makers. Sometimes they cut off older family members from the kids. But many parents are not equipped for the parenting task, and our society treats parenting as if we are all born knowing how to parent well. Grandparents who have already been through the parenting experience tend to be wiser than young parents.

If custody should not be or is not granted to either parent, courts must next grant custody to the person or persons in whose home the child has been living in a "wholesome and stable" environment. 3040(b). If no such person is available then custody may be awareded to any other person deemed by the court to be "suitable and able" to provide adequate and proper care and guidance for the child.

California custody courts have and exercise the "widest discretion" to choose a parenting plan that is in the best interests of the child.

Rules for custody differ from those dealing with visitation. California rules relating to grandparent visitation, step parent visitation, or visitations by others are found beginning at Family Code section 3100(a). "In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child." Family Code section 3101 addresses stepparents. Sections 3103 and 3104 deal with different grandparent visitation scenarios.

Nonparent custody is a different animal than nonparent visitation. I will separately write a blog about visitation and link it to this page. In the meantime, take a look at the visitation statutes are found at 3100 et seq.

Grandparent Custody Statutes

The grandparent custody statute is found at California Family Code section 3041.

The rules to qualify for nonparent custody are, appropriately, very difficult to satisfy. I say "appropriately" because we need to be skeptical of the State, or of family outsiders, imposing their will and views upon us. At the same time, we need to listen to our tribal members, so to speak.

Family Code section 3041 is a powerful statute. It creates a presumption in favor of parents objecting to nonparent custody, which a grandparent, for instance, may only overcome by presenting to the Family Court "clear and convincing evidence" that "granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child."

"Clear and convincing" evidence means evidence 'so clear as to leave no substantial doubt' or evidence which is 'sufficiently strong to command the unhesitating assent of every reasonable mind'.

There is an extremely valuable limitation to the clear and convincing evidence standard in nonparent custody cases under this statute:

"'detriment to the child' includes the harm of removal from a stable placement of a child with a person who has assumed, on a day-to-day basis, the role of his or her parent, fulfilling both the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time."

If a grandparent can prove that they are a person described above, then not only does the "clear and convincing" burden evaporate, but "this finding shall constitute a finding that the custody [with the nonparent] is in the best interest of the child and that parental custody would be detrimental to the child absent a showing by a preponderance of the evidence to the contrary."

Thus, in grandarent contests with parents over custody, they are going to lose unless the grandparent, over a substantial time period (defined by the age of the child), become a de facto parent. This often happens where children are left in the care of a grandparent for many months or more, while the custodial parent is away.

Protect your grandchildren!

Author: Thurman Arnold, III

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6 entries found. Viewing page 1 of 1.