Posted by: Gerald A. Maggio, Esq.
In California child custody is based on the overall best interest of the child. This means the health, welfare and safety of children is the first concern of the courts.
“Despite the fact that most states, including California, advocate for the best interests of the child in custody proceedings, what that ‘actually’ means is often decided on a case by case basis. Its interpretation is also often left to the family court judge,” commented Gerald A. Maggio, of The Maggio Law Firm in Irvine, California.
The difficult thing with this mantra – what is in the best interests of the child – tends to vary in each state, with some advocating a preference and presumption for joint custody while others don’t agree with that line of thinking. Some states are also amending their laws to have a preference/presumption for joint custody, and others are opting to only have joint custody if the parents both agree to it. “Frankly, this is a matter that is best discussed with an attorney, because each case is different and thus may resolve itself in a different manner. When dealing with child custody cases it’s best not to make assumptions,” Maggio said.
In California, the standard for child custody is the much talked about best interests doctrine combined with a leaning toward frequent and continuing contact with both parents. “The one thing to note about California family law when it comes to dealing with child custody is that there is ‘no’ preference or presumption for or against joint custody or even custody to one parent. The parenting plans are generally left to the family law court or a judge,” explained Maggio.
For those who may have been following the changes in the law with regard to child custody, California at one time ‘did’ have a presumption for joint custody. This was amended in 1994 to allow for joint custody only when the parents were in agreement. This amendment put California in line with several other states who adopted a similar law: Washington, Vermont, Nevada, Mississippi, Michigan, Maine, and Connecticut.
Whatever the case may be in the various other states, one thing seems to be certain: there is a trend toward joint custody being adopted as being in the best interests of the child. This of course is only applicable if certain circumstances apply. For example, evidence of an unfit parent or evidence that the child may be the victim of abuse; therefore, joint custody would not be in their best interests.
“Anyone faced with a child custody battle would be well-advised to speak to an experienced family attorney to find out what laws apply in that area. It would also be in the parents’ best interests to find out what the courts in their state feel is the best for the child in custody disputes,” Maggio pointed out.
Gerald A. Maggio is senior partner of The Maggio Law Firm, Inc., an Orange County and Riverside Divorce and Family Law firm headquartered in Irvine, California. The Maggio Law Firm is experienced in all aspects of divorce and family law matters, including child custody, child support, spousal support, complicated high asset marital property cases, and domestic partnerships.
To learn more about the Maggio Law Firm visit http://www.maggiolawfirm.com/.
Posted by: Gerald A. Maggio, Esq.
The National Center for Victims reveals that nearly 1.4 million people are stalked every year in the US alone. This may be considered domestic violence during divorce proceedings and may impact on child custody if there is a conviction.
It goes without saying that the number of victims stalked in the US every year is highly unsettling. Unfortunately, in many cases, the victim was not aware they were being stalked until things get out of control. If you have instituted divorce proceedings and find you are being stalked, immediately speak to an Orange County divorce attorney. Generally speaking, women are more likely to be stalked than men; and in most cases, women are being stalked by men whom they were once involved with intimately. This may mean dating, long or short term cohabitation, and even marriage.
Stalking is usually defined as multiple unwanted acts that escalate over a period of time and get more dramatic and more out of control. No one has to put up with stalking and this is where an Orange Country divorce attorney will be able to assist you. There is no reason for you to have to change your lifestyle to feel safe. In many cases, stalking may lead to even more violent crimes such as murder.
While there are several things that you may do to take action in situations such as this, speaking to a highly skilled and empathic Orange County divorce attorney should be the first thing on your list. Find out how you may protect yourself and your children if you feel you are being stalked as a result of a failed cohabitation or marriage.
Aside from speaking to a compassionate divorce attorney with extensive experience in the area of domestic violence, make sure you keep a record of every incident where the person stalking you tries to contact you. This means by any method of communication and includes phone, texts, emails, in-person visits, and other incidents that seem strange and unusual.
Even though you may set boundaries and explicitly tell the person they are making you uncomfortable, they may continue to harass you. You may be able to put some distance between them and you and your children, but if they are dedicated to stalking you for their own reasons, getting them to cease and desist is often difficult. You definitely need to speak to a knowledgeable Orange County divorce attorney to find out what your options and legal remedies are here.
Do no attempt to do anything about the stalking on your own and always tell anyone who may be able to help you about any suspicious activities you have witnessed. This would include speaking to your attorney to apprise him or her of anything untoward or anything that indicates an escalation in the harassment of the stalker. Having been involved with the person, you will have good insight into what they may be doing and why and what they may attempt to do to harm you.
If the stalking incidents are not resolved by a conviction and jail time, and the significant other or spouse has been accused of domestic violence, this will have a direct impact on any child custody disputes.
Domestic violence is simply not tolerated when it comes to the safety and best interests of any children involved in a marital breakup. This is clearly stated in the California Family Code, Section 3044 that outlines “Upon a finding that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a such a person is detrimental to the best interest of the child.”
Gerald A. Maggio is an Orange
County divorce attorney, in Irvine, California. To learn more about Orange County divorce lawyer, Gerald A. Maggio visit Maggiolawfirm.com.
Posted by: Gerald A. Maggio, Esq.
In any child custody dispute in California, mediation is mandatory per California Family Code 3170.
Mediation is considered to be a form of alternative dispute resolution and it is this form of resolving differences of opinion that is used in California to settle child custody and visitation disputes. This lets the parents have the chance to try and get their differences sorted out without having to go to court and have the judge intervene in the affair.
Mandatory mediation means that if you file for an Order to Show Cause hearing requesting initial child custody and visitation orders or modification of existing custody/visitation orders, the court orders that the parties attend a mediation session at the courthouse on a date prior to the hearing date.
When it comes to mediation, there aren’t too many mysteries, as it’s a fairly straightforward process. Both sides get to discuss their problems and concerns, and the mediator helps them meet in the middle and find a resolution that works for both parties. Put another way, the whole purpose of mediation in a nutshell is to assist the parents embroiled in a child custody argument to resolve their disagreements and focus on creating a parenting plan that is in the best interest of the children.
Just because mediation is considered to be mandatory doesn’t always means that the process will work. Some of the cases that do come to mediation in California are far too complex or communications have totally broken down between the divorcing couple and they refuse to speak to one another.
There are other instances when even though a mediation agreement has been signed, the other party changes their mind. The agreement may be altered if a written cancellation request is given to the mediator. Rather than take any chances that things may go wrong at this stage, it’s wise to consult with an expert family attorney to find out what is required to cancel and what time constraints you may be under.
While mediators can do a lot of things, there are just as many things that they cannot do. It is for this reason that you should speak to a highly qualified attorney and find out the limits of mediation. If mediation doesn’t work, then there is always recourse to the courts. Just bear in mind that particular route does cost more and needs expert legal representation.
It is highly advised that you consult with a California child custody attorney to prepare you for your mediation, because each county handles custody mediations differently. In Orange County, for example, if nothing is agreed in mediation, that is the end of it and the parties continue to hearing.
In the Inland Empire, such as Riverside and San Bernardino County, even if the parties are unable to work out an agreement in mediation, the mediators there are empowered to make custody/visitation recommendations to the judge, based on only having met with the parties for one hour. The court can and often times does adopt those recommendations as a court order! So it is extremely important to take the mediation seriously and is also why having skilled legal counsel is highly advised.
Renee Cary writes for Irvine divorce attorney, Gerald Maggio of The Maggio Law Firm. To learn more about Irvine divorce lawyer, Gerald Maggio visit Maggiolawfirm.com.
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In any California child custody case, including divorce and separation cases, whenever an Order to Show Cause (OSC) hearing addressing child custody and visitation issues are filed, the Court will order that the parties attend mediation at no cost through the court’s mediation department prior to the Order the Show Cause hearing date. Although the law requires that the parents participate in mediation, there is not a requirement that they reach an agreement.
Mediation is intended to reduce conflict between the parties by encouraging cooperation and assisting parents in creating their own parenting plan the meet the needs of their children with their best interests in mind.
The court mediators are generally trained professionals who have at least a Master’s Degree, have extensive experience in psychology and marital/family counseling and are trained in conflict resolution.
In mediation, the mediator meets with the parties wither together and/or individually. If there has been domestic violence between the parties, the mediation is usually held in separate sessions with each parent for safety reasons and to avoid any appearance of intimidation.
The mediator works to assist the parties in focusing on parenting arrangements that are in the best interests of their children and can put together a partial or full parenting agreement schedule (including legal custody, parenting plans, holiday and vacation schedules, transportation and other issues) depending on what the parties are able to agree upon in mediation.
Parents can sometimes resolve all of their parenting issues in mediation, sometimes only a partial agreement can be reached, and otherwise no agreement is reached. Mediators only draft agreements that are acceptable to both parties. If the mediation agreement is still agreeable to both parties at the time of the Order to Show Cause hearing, in can be adopted and incorporated into a court order.
Only the parties attend mediation, with no attorneys, spouses or other family members present, although a second session can sometimes be requested so that the mediator can speak with the parties’ children, if it is believed that such feedback would be helpful in assisting the parties to develop parenting plans.
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In Orange County, mediations are merely efforts for the parties to meet face-to-face without their attorneys to attempt to resolve such issues. Mediators in Orange County do not make recommendations to the Court of parenting plans.
However, in Riverside County and other Inland Empire Family Courts, the court mediator can make recommendations regarding child custody and visitation that the Court judge will very likely give substantial consideration to in making court orders.
Mediators in all California Custody cases are allowed under law to make recommendations to the Court where there are allegations of domestic violence, drug and/or alcohol abuse, and other concerns of the mediator affecting the welfare and best interests of the children. Such recommendations can include an emergency child custody evaluation, a domestic violence investigation, a full psychological child custody evaluation, or the appointment of a “minor’s counsel,” who is a private attorney appointed to represent and protect the best interests of the minor children.
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There are two types of child custody, Legal Custody and Physical Custody. Legal custody concerns who is entitled to make the decisions concerning the health, education and welfare of the parties’ children. Physical Custody involves who has the children and on what days and time.
- “Sole Legal Custody” means that one parent has the right to make the decisions concerning the health, education and welfare of the children. (California Family Law Code Section 3007)
- “Joint Legal Custody” means that both parents must confer and share the responsibility and right to make the decisions concerning the health, education and welfare of the children. (California Family Law Code Section 3003)
- “Sole Physical Custody” means that the children live with one parent with the other party having regular visitation. (California Family Law Code Section 3007)
- “Joint Physical Custody” means that the children spend a substantial amount of time living with both parents, but does not mean that there is a pure 50% split of parental time between the parents. (California Family Law Code Section 3004)
- “Joint Custody” means joint physical and joint legal custody. (California Family Law Code Section 3002)
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Joint legal Custody means that both parents share the right and responsibility to make the decisions concerning the health, education and welfare of the child (Family Code 3003). In making an order for custody concerning both parents, the court may grant joint legal custody without granting joint physical custody (Family Code Section 3085).
Family Code Section 3003 does not spell out any details of exactly what “Joint Legal Custody” entails, and so it is highly advisable that any court orders in your case include a detailed listing of the specific rights and responsibility of both parties as they pertain to legal custody. The specified rights and responsibilities include the following provisions:
1. The parents must confer in making decisions on the following matters:
- Enrollment in or leaving a particular public or private school or daycare center.
- Participating in particular religious activities or institutions.
- Beginning or ending of psychiatric, psychological, or other mental health counseling or therapy.
- Selection of a doctor, dentist, or other health professional (except in emergency situations).
- Participation in extracurricular activities.
- Out-of-country or Out-of state travel.
2. The parent who has the physical care of the children at any given time shall have the routine decision-making rights and responsibilities during these periods of time; however, all major decisions pertaining to health, education and daycare shall be made jointly by the parents. No prior consultation is required between the parents regarding emergency medical or dental treatment, routine checkups, or minor illness. However, the other parent shall be notified immediately in the case of an emergency. A sharing of routine health information is encouraged.
3. In the event that controversy arises regarding major medical decisions, both parents shall first consult together and if no resolution is reached, meet and confer with an expert in the field related to the dispute, e.g. the child’s doctor, teacher, counselor, etc. If the consultation does not resolve the dispute, the parents shall return together to Mediation at the courthouse in an attempt to reach an agreement. Finally, if the dispute continues, if shall be submitted to the Court for a decision, and until then, the existing orders shall remain in effect.
4. Neither parent shall enroll the children in activities that require a commitment from the other parent or interfere with a previously agreed upon Court-ordered schedule without mutual approval. Parents are encouraged to attend their children’s activities. Parents are responsible for keeping themselves advised and for advising each other of all school, athletic, and social events in which the children participate.
5. Pursuant to Family Law Code Section 3025, both parents shall have the same access to psychological, medical, dental and school records pertaining to their children and shall be permitted independently to consult with any and all concerned professionals. The names of both parents shall be listed on school and extracurricular cards to be contacted in case of an emergency.
6. Each parent shall notify the other of the name, address, and telephone number of each health practitioner who examines or threats the children; such notification to be made within one day of the commencement of the first such treatment or examination.
7. Neither parent shall submit the child to any psychological/psychiatric testing or evaluation or to any extended course of medical, dental, orthodontic, psychiatric or psychological treatment/counseling without first obtaining the consent of the other parent.
8. Both parents are required to administer any prescribed medications for the children.
9. Each parent shall be entitled to reasonable telephone communication with the children at reasonable hours. Each parent shall not interfere with the children’s right to privacy during such telephone conversations.
10. Neither party shall change the surname of the children or cause surnames to be changed on medical, dental, school, DMV records or other legal documents without the consent of the other parent or order of the court.
11. Either party may travel out of the state of California with the minor children.
12. Should either parent move from their current residence, they shall advise the other parent of their now address and telephone number with two days prior to the move.
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The Court will consider your case as a domestic violence case if, in the past 5 years,
1. A parent was convicted of domestic violence against the other parent, or
2. Any court has decided that one parent committed domestic violence against the other parent of the children (which means that a court’s previous issuance of a restraining order in your case highly relevant in your custody case).
If the court decides that there was domestic violence in the past five years against a parent or the children, the judge must follow special rules to decide custody of the children.
In particular, pursuant to Family Code Section 3044, if the Court makes such a finding there is a legal presumption that the party who perpetuated the domestic violence should not have sole or joint custody of the parties’ children. Such legal presumption can be overcome and custody awarded to the parent who committed the domestic violence if it is in the best interests of the child, the perpetrator has completed a 52-week batterer’s program, not committed any other domestic violence, and has complied with all other orders of the Court.
The complete text of California Family Code Section 3044 is as follows:
(a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebutable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic vtiolence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.
(b) In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors:
(1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part.
(2) Whether the perpetrator has successfully completed a batterer’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.
(3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate.
(4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate.
(5) Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole.
(6) Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.
(7) Whether the perpetrator of domestic violence has committed any further acts of domestic violence.
(c) For purposes of this section, a person has “perpetrated domestic violence” when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal
property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child’s siblings.
(d) (1) For purposes of this section, the requirement of a finding by the court shall be satisfied by, among other things, and not limited to, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 of, or Section 261, 262, 273.5, 422, or 646.9 of, the Penal Code.
(2) The requirement of a finding by the court shall also be satisfied if any court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous five years.
(e) 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.
(f) In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case.
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With the growth of technology in recent years some courts have ordered or otherwise encourage visitation on the computer, known as “virtual Visitation” in situations where one parent lives a ling distance from their child Virtual Visitation required that households of the custodial and non-custodial parents to have newer model computers equipped with webcams or other video conferencing equipment and Instant Messaging capabilities.
Although such visitation is not a replacement or substitute to real visitation in person and not intended to support or justify a relocation or move-away of the custodial parent with the child, it is a certainly a substantial improvement over the telephone because th parent and child can see each other as the speak. Visit www.internetvisitation.org to learn more.
Other options in addition to the old standby of regular telephone visitation can include email communications, which can allow more instantaneous communications than simply mailing a letter. These options should all be utilized so that the long-distance (or even shorter-distance) parent has regular, quality visitation with the child.
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If you did not marry your child’s mother, your rights regarding custody and visitation in California would need to be established through the filing of a paternity case.
What does Paternity Mean?
Paternity means who is the father of a child. Establishing paternity refers to the legal process of determining the biological father of a child where the parents are not married. While paternity is generally legally presumed for married couples, it is not automatic for unmarried persons.
The establishment of paternity and a parental relationship is important for the father to have legal rights (custody and visitation) and legal responsibilities (child support) concerning his child. Establishing paternity is the first step in the legal process before any court can make any orders concerning custody, visitation and child support, and can be done by either signing a “Declaration of Paternity” form or filing a “Petition to Establish Parental Relationship” in Family Court.
What is a Declaration of Paternity?
It is a legal form signed by both parents that states that the man is in fact the legal father. A Declaration of Paternity form can be obtained at the hospital when the child is born, or either from the Family Court or your county recorder’s office. However, it does not create any court orders concerning custody, visitation or child support, which requires going to court.
Can I cancel the Declaration of Paternity If I Later Believe that I May Not Be The Father?
Yes. Either parent can cancel the Declaration of Paternity by completing and filing a “Rescission of Paternity” from with the California Department of Social Services within 60 days from the date that the Declaration of Paternity was filed.
What are the Benefits of Establishing Paternity?
For the father, establishing paternity in turn establishes his legal parental rights and right to seek custody and/or visitation, allows his name to be added to the child’s birth certificate, and assures that Social Security or Veteran’s benefits are paid to his child even in the event of the father’s disability or death.
For the mother, it can allow for the sharing of the financial responsibilities of parenthood, including entitlement to child support, reimbursement for birth costs, reimbursement of one-half of the sharing of the child’s medical and dental expense.
Finally, for the child, having both parents actively involved in his or her life and receiving emotional and financial support and love from both parents is in the child’s best interests and increases the chances of a better future for the child.
