Modifying child custody and visitation in California

Modifying child custody and visitation in California
Modifying child custody and visitation in California.

Modifying child custody and visitation in California is the topic of this blog post.

Several California statutes and California Supreme Court and Court of Appeal cases outline the standards used and the burden of proof on the party seeking an order modifying child custody and visitation in California.

Laws governing modifying child custody and visitation in California.

The law in California states that child custody and visitation orders generally are modifiable throughout the child’s minority whenever the court finds a modification is “necessary or proper” in the child’s best interests. See Family Code § 3022.

In California, in child custody/visitation matters and child support, the family law court has continuing jurisdiction and the matter thus remains pending even after entry of the underlying dissolution (or legal separation or nullity) judgment.

In at least two published cases the California Supreme Court has stated that although the statutes governing custody adjudications only requires courts to ascertain the child’s best interest, the best interest standard has an added twist once a “final” judicial custody determination is in place: A party seeking to modify a “permanent” custody order can do so only upon a showing of a significant change of circumstances so affecting the child that modification is essential to the child’s welfare. Absent such a showing, any modification would be an abuse of discretion as denying the child the benefits of a stable home environment and thus would not be in his or her best interest.

In California, the trial court’s exercise of discretion is far more limited when it effects a change in existing custody orders than when it makes an initial custody decision.

Appellate courts are “less reluctant to find an abuse of discretion when custody is changed than when it is originally awarded, and reversals of such orders have not been uncommon.” Marriage of McLoren (1988) 202 Cal.App. 3d 108, 113, modification giving W joint legal custody (where original order gave H sole legal and physical custody) reversed because W failed to present proof of change of circumstances affecting children’s welfare.

Both the California Supreme Court and Courts of Appeal have stated that the “changed circumstances” rule is an adjunct of the statutory “best interests” test for determining child custody. See Family Code §§ 3011, 3040(b). It furthers the paramount goal of preserving the need for continuity and stability in custody arrangements, unless some significant change in circumstances indicates a different arrangement would be in the child’s best interest.

While the party seeking an order modifying child custody and visitation in California must make a showing of changed circumstances in many cases, there are exceptions to this rule that should be carefully considered and reviewed by any party contemplating requesting that the Court modify child custody and/or visitation orders in California.

For example the changed circumstances rule is triggered only after what is known as a “final” or “permanent” custody adjudication. The ordinary best interest standard, without the additional changed circumstances burden of proof applies when the court makes any initial custody adjudication, and when it adjudicates custody following any temporary or interim custody

However as the policy is not to discourage parties from entering into custody stipulations, any doubts about whether the parties intended a stipulated custody order to be a “final” or “permanent” custody adjudication will be resolved against finality and thus against application of the changed circumstances rule in subsequent proceedings to modify the stipulated order.

All indication is that, where the issue is disputed, a stipulated order will be deemed to be temporary or interim in nature unless it clearly states it is a final judgment as to custody or words to that effect. The order must affirmatively state that it is a final order.

In one case, a stipulated dissolution judgment awarded the parties’ joint legal custody, mother “primary physical custody” and father “reasonable visitation.” The judgment also recited, however, that “in the event the parties are unable to resolve their custody and visitation issues, they shall agree upon a therapist or counselor to assist them. If after meeting with a therapist or counselor, the parties remain unable to resolve their differences, they shall make an appointment with the Conciliation Court prior to either party filing a request with the Court for a hearing on the issue.” Despite other boilerplate language in the judgment stating it was intended to be a final settlement of the parties’ rights and obligations, there was no “clear, affirmative indication” that they intended the stipulated custody provision to be a final judicial custody determination. Quite the contrary, the stipulated language warranted “the opposite conclusion the parents disagreed and were attempting to resolve the custody and visitation issues.”

As to physical custody, the changed circumstances rule applies when the modification request seeks to remove custody from one parent and give it to the other. By contrast, no change of circumstances need be shown as a prerequisite to altering only the co-parenting schedule (the amount of time the child spends in each parent’s household) under a joint custody order. Proposed changes in parenting time are “not on a par with a request to change physical custody from sole to joint custody, or vice versa”; the only standard the moving parent must meet in such cases is the child’s best interest.

So long as the joint custody award itself is not being changed, the court has very broad discretion to revise the “coparenting residential arrangement” where the parents are unable to agree and call upon the court to intervene.

Despite what some people think, the changed circumstances rule does not apply when a parent requests only a modification of the visitation arrangement (whether in a joint custody or sole custody situation). Because such a modification does not change “custody,” the trial court considers a visitation modification solely under the child’s best interests standard.

Sample points and authorities in support of modifying child custody and visitation in California.

Attorneys or parties in California that would like to view a portion of a sample 13 page points and authorities in support of a request for an order modifying child custody and visitation in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author can see below.

 

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

The author of this blog post, Stan Burman, is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale. He believes in Father’s Rights as he has seen first-hand the incredible bias against fathers in the family law courts in California. He is currently working on creating digital products that will assist fathers both in California and throughout the United States to represent themselves without an attorney in Court regarding custody and support issues.

Follow Fathers rights on Twitter at:

https://twitter.com/Fathersrights16

Follow Fathers rights on Google Plus at:

https://plus.google.com/+Fathersrights

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

Child custody definitions in California

Child custody definitions in California
Child custody definitions in California.

Child custody definitions in California are the topic of this blog post.

This blog post will provide basic information on child custody definitions in California.

Joint Legal Custody:

Joint legal custody means that both parents have the authority to make important decisions regarding the child’s health, education, welfare, religion, driver’s license, etc. In some cases a judge will give parents joint legal custody, but not joint physical custody.

Joint legal custody means both parents share the responsibility in making important decisions in their child’s lives, but live with one parent most of the time. In most situations, the parent that does not have physical custody has visitation with the children.

Parents with legal custody have the right to make decisions regarding:

Parents with legal custody have the right to make decisions regarding:

School or childcare

Religious activities or institutions

Psychiatric, psychological, or other mental health counseling or therapy needs

Doctor, dentist, orthodontist, or other health professional (except in emergency situations)

Sports, summer camp, vacation, or extracurricular activities

Travel

Where to live

Joint Physical Custody:

Joint physical custody means that each parent has significant periods of physical custody, although parents can share joint custody even if the timeshares are unequal. For example, one parent may alternate a weekend schedule and the other parent has the child the rest of the time.

Legal Custody:

Legal custody means that the parent that has legal custody has decision-making authority for issues with health, education, and welfare of a child. When both parents share this responsibility it is referred to as “Joint Legal Custody.”  When only one parent has this responsibility, it is referred to as “Sole Legal Custody.”

Physical Custody:

Physical custody means that the parent or parents have the physical responsibility for the care of the child. Physical custody can be joint physical custody or sole physical custody.

Primary Physical Custody:

Some attorneys avoid the use of either “sole custody” or “joint custody” and use the term “primary physical custody” to designate the parent who has day-to day care of the child.

However I want to stress that the child custody laws in California do NOT recognize the term “primary physical custody” as the California Supreme Court has stated that the term “`primary physical custody'” is not found in the Family Code, which instead distinguishes between “`[j]oint physical custody'” (§ 3004) and “`[s]ole physical custody'” (§ 3007). See In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1081, fn. 1; see also In re Marriage of Richardson (2002) 102 Cal.App.4th 941, 945, fn. 2 (“Though frequently employed, the term `primary physical custody’ has no legal meaning.”.)

Using the term primary physical custody in any marital settlement agreement, or stipulated judgment or order can have negative consequences under certain circumstances such as move-away cases where one parent wants to move with the minor children to another city or state.

Sole Legal Custody:

Sole legal custody means that one parent is able to make all decisions regarding the child’s health, education, welfare, religion, driver’s license, etc.

Sole Physical Custody:

Sole physical custody means that one parent will have the physical custody of the child the great majority of the time, as well as responsibility for day-to-day care of the child.

Visitation:

If one parent has physical custody, the other parent is referred to as having visitation with the child.

Attorneys or parties in California that would like to view a portion of a sample stipulation and order for child custody and visitation in California created by the author can see below.

 

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

The author of this blog post, Stan Burman, is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale. He believes in Father’s Rights as he has seen first-hand the incredible bias against fathers in the family law courts in California. He is currently working on creating digital products that will assist fathers both in California and throughout the United States to represent themselves without an attorney in Court regarding custody and support issues.

Follow Fathers rights on Twitter at:

https://twitter.com/Fathersrights16

Follow Fathers rights on Google Plus at:

https://plus.google.com/+Fathersrights

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

 

 

Notice in lieu of subpoena duces tecum in a California divorce

Notice in lieu of subpoena tecum in a California divorce
Notice in lieu of subpoena tecum in a California divorce.

A notice in lieu of subpoena duces tecum in a California divorce is the topic of this blog post.

A notice in lieu of subpoena duces tecum in a California divorce is also commonly referred to as a notice to appear at trial or hearing and produce documents.

A notice in lieu of subpoena duces tecum in a California divorce is given pursuant to subdivisions b and c of Code of Civil Procedure section 1987, and can only be served on a party to the civil action or proceeding, or someone who is an officer, director, or managing agent of any such party. One of the main advantages of using the notice to appear is that service may be made by mail, instead of personal service as is required with a standard subpoena.

A notice in lieu of subpoena duces tecum in a California divorce is allowed as Family Code section 210 states that the same rules and procedures for civil cases are applicable unless another statute or rule has been adopted by the California Judicial Council.

A party who has not requested certain essential or critical documents during the discovery process, whose existence is known, and which can be clearly identified, can use the notice to appear and produce documents to compel the other party to appear and produce the documents.

If only the attendance of the person as a witness is required, then service may be made personally at least ten (10) days before the trial or hearing, or fifteen (15) days before the trial or hearing if service is made by mail. Service should be made on the party or their attorney if they have one.

If production of documents is required, then service may be made personally at least twenty (20) days before the trial or hearing, or twenty five (25) days before the trial or hearing if service is made by mail. Service should be made on the party or their attorney if they have one. The notice should state the exact materials or things desired, as well as a statement that the person has them in their possession, or under their control.

The giving of the notice shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court. See Code of Civil Procedure § 1987(b).

Sample notice in lieu of subpoena duces tecum in a California divorce for sale.

Attorneys or parties in California who wish to view or purchase a sample notice in lieu of subpoena duces tecum in a California divorce for use on an individual sold by the author can see below.

 

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

The author of this blog post, Stan Burman, is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale. He believes in Father’s Rights as he has seen first-hand the incredible bias against fathers in the family law courts in California. He is currently working on creating digital products that will assist fathers both in California and throughout the United States to represent themselves without an attorney in Court regarding custody and support issues.

Follow Fathers rights on Twitter at:

https://twitter.com/Fathersrights16

Follow Fathers rights on Google Plus at:

https://plus.google.com/+Fathersrights

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

 

Opposing an OSC for contempt in a California divorce

Opposing an OSC for contempt in a California divorce
Opposing an OSC for contempt in a California divorce.

Opposing an OSC for contempt in a California divorce is the topic of this blog post.

Opposing an OSC for contempt in a California divorce is very important and any opposition to an OSC for contempt in California family law should be filed and served at least nine (9) Court days before the hearing pursuant to Code of Civil Procedure section 1005.

If you have been served with an order to show cause for contempt in California the first thing you should do is to carefully review the order to show cause and supporting affidavit to determine what grounds for opposition exist.

Grounds for Opposing an OSC for contempt in a California divorce.

Possible grounds for opposing an OSC for contempt in a California divorce would include situations where the alleged child support arrearages first became due more than three (3) years ago. Therefore any child support amounts that are alleged to be owed that became due more than three (3) years ago are barred by the statute of limitations found in Code of Civil Procedure § 1218.5(b) which states in pertinent part that, “If the contempt alleged is the failure to pay child, family, or spousal support, the period of limitations for commencing a contempt action is three years from the date that the payment was due”.

And if you were truly unable to pay the child support or comply with another Court order and can prove that by a preponderance of the evidence you should not be held in contempt.

Other possible grounds could include a case where the other party is alleging that you violated a Court order other than an order to pay support. In that case any alleged violations that occurred more than two (2) years ago are barred by the statute of limitations found in Code of Civil Procedure § 1218.5(b) which states in pertinent part that, “A contempt action to enforce any other order made under the Family Code must be brought within two years “from the time that the alleged contempt occurred.”

You may also be entitled to what are known as “Jackson credits” towards any alleged child support arrearages for the period of time that the minor child or children physically resided with you as you are considered to have directly discharged your support obligation to the minor children.

Your opposition should contain a declaration stating the facts that support your affirmative defenses including any exhibits that support your affirmative defenses.

Remember that the party that filed the order to show cause for contempt must prove to the Court that you are guilty of contempt beyond a reasonable doubt. However you are only required to prove your affirmative defenses by a preponderance of the evidence in order to prevail in Court.

Sample opposition for opposing an OSC for contempt in a California divorce for sale.

Attorneys or parties in California that would like to view a portion of an 11 page sample opposition to an order to show cause for contempt in a California divorce containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service can see below.

 

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

The author of this blog post, Stan Burman, is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale. He believes in Father’s Rights as he has seen first-hand the incredible bias against fathers in the family law courts in California. He is currently working on creating digital products that will assist fathers both in California and throughout the United States to represent themselves without an attorney in Court regarding custody and support issues.

Follow Fathers rights on Twitter at:

https://twitter.com/Fathersrights16

Follow Fathers rights on Google Plus at:

https://plus.google.com/+Fathersrights

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

Opposing a request for attorney fees in a California divorce

Opposing a request for attorney fees in a California divorce
Opposing a request for attorney fees in a California divorce.

Opposing a request for attorney fees in a California divorce is the topic of this blog post.

All documents and supporting evidence for opposing a request for attorney fees in a California divorce must be filed and served least nine (9) Court days before the hearing unless the court has ordered otherwise. The opposition documents should be served by personal service, overnight mail or a courier service that provides overnight delivery pursuant to Code of Civil Procedure section 1005.

Any party served with a request for attorney’s fees in a California divorce should carefully review the request and supporting documents to determine if the moving party has met the burden of proof required to obtain an award of attorney’s fees.

Grounds for opposing a request for attorney fees in a California divorce.

Common grounds for opposing a request for attorney fees in a California divorce include that,

(1) The moving party has failed to meet their burden of establishing a need for the other party to pay for their legal representation;

(2) The moving party has failed to meet their burden of establishing that the relevant financial circumstances of the parties justify a need-based attorney’s fees award;

(3) The amount of attorney’s fees requested is excessive, and

(4) The moving party has failed to submit sufficient information to determine the nature and value of the attorney services rendered.

Several California Courts of Appeal have stated in published decisions that the party requesting an award of attorney’s fees in a California divorce has the burden of establishing the need for the other party to pay for their legal representation.

Family Code section 2032 states in pertinent part that need-based attorney fees awards, even those sought under section 2031, be based (among other factors) on the parties’ relative financial circumstances.

Family Code section 2030 permits the trial court to order payment of attorney fees and costs as between the parties based upon their “ability to pay” and their “respective incomes and needs” in order to “ensure that each party has access to legal representation to preserve all of the party’s rights.” See Family Code, § 2030(a).

The trial court may award attorney fees under section 2030 “where the making of the award, and the amount of the award, are just and reasonable under relative circumstances of the respective parties.” See Family Code, § 2032 (a).

A recently published California Court of Appeal decision stated that Family Code sections 2030 and 2032 are intended to prevent a party from litigating the other side out of the case by taking advantage of the substantial difference in their incomes.

The same principles that apply to a motion for attorney’s fees in an civil action in California also apply to a request for attorney’s fees in a California divorce as Family Code § 210 states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

The case law in California regarding civil actions states that a party may oppose a motion for attorney’s fees on the ground that the requested fees are excessive. A party seeking an award of fees is not necessarily entitled to compensation for the value of attorney services according to his or her own notion or to the full extent claimed.

The California Supreme Court has stated that an attorney fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.

Sample opposition for opposing a request for attorney fees in a California divorce for sale.

Attorneys or parties that would like to view a portion of a sample 12 page opposition for opposing a request for attorney fees in a California divorce containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can see below.

 

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

The author of this blog post, Stan Burman, is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale. He believes in Father’s Rights as he has seen first-hand the incredible bias against fathers in the family law courts in California. He is currently working on creating digital products that will assist fathers both in California and throughout the United States to represent themselves without an attorney in Court regarding custody and support issues.

Follow Fathers rights on Twitter at:

https://twitter.com/Fathersrights16

Follow Fathers rights on Google Plus at:

https://plus.google.com/+Fathersrights

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

 

To be the Voice of Every Child who has None — Peace Not Pas

[The following is written by an anonymous contributor] Easter Sunday, April 22nd, 1973. I saw my father for the very last time, when I was aged three. He travelled down to South Jersey to see me. I heard him knock on the door. My mother shushed me to my bedroom. I peeped through my Mickey Mouse […]

via To be the Voice of Every Child who has None — Peace Not Pas

I wanted to share this very moving article

MP finally champions anti-alienation cause — Peace Not Pas

We were pleased to see Andrew Brigden, UK MP for North West Leicestershire championing the anti-parent alienation cause at Westminster recently. Of course, we are committed to and fully support all actions intended to bring this social pandemic to an end. So we’re very happy to relay Andrew’s comments: “Our family courts system has many […]

via MP finally champions anti-alienation cause — Peace Not Pas

If more politicians in the United States would address the issue of parental alienation it would be possible to enact some much needed family law court reforms.