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Custody and Support

CHILD CUSTODY:

Renee Marcelle completed the requirements for Court Appointed Minors Counsel per the California Rule of Court rules 5.242(c) and 5.242(f) on 3-10-09 and updates the designation with additional training on an annual basis. Representation of a child in custody and visitation proceedings requires knowledge of the various stages of child development; communicating with a child at various developmental stages and presenting the child's view in court; recognizing, evaluating and understanding evidence of child abuse and neglect, family violence and substance abuse, cultural and ethnic diversity, and gender-specific issues; the effects of domestic violence, child abuse and neglect on children; and    the ability to work effectively with multidisciplinary experts.

During dissolution, the highest emotional impact of the spouses often surrounds child custody. The Best Interest of The Child, is the standard that the court will use to determine where the child will be placed. The court uses this standard to decide who the primary care giver will be. Often times Custody is shared equally.

If the court must get involved, often the parties are sent to family court mediation to work out a parenting plan. Mediation is when both parties attend a conference with a neutral party in order to discuss proposals for custody and support arrangements The court typically looks at the status quo to determine what is in the best interest of the child. Both parties are encouraged to create a set schedule of shared-parenting. An example is having weekends with the child, rotating holidays, or weekly visits. After mediation, an attorney can formalize any agreements and litigate any unresolved issues.

Sometimes psychological evaluations of the children or parties are recommended. The primary goal is to find out if either parent suffers from a dysfunction which impairs their ability to care for the children. During the evaluation, the parties are subjected to a series of psychological tests and observations. A psychologist may also view the history of the family parenting plan, while giving most weight to the most recent plan. Generally a psychologist supports the most recent parenting plan for the child, except if there is a valid reason for dramatic change.

CUSTODY EVALUATIONS

Custody evaluations are often used in cases where there is a dispute as to the physical or emotional stability of the spouses or children. In certain cases, a custody evaluation is necessary including cases where a move is contemplated, where there is alleged child abuse, or alleged substance abuse. Depending on the circumstances a court Mediation Services Evaluation, or a private Child Custody Evaluation may be indicated.

SUPPORT:

Typically spousal support is paid in installments for a certain length of time or until the death of one of the spouses or the remarriage of the recipient. Unlike child support, and unless otherwise agreed spousal support is taxable to the recipient and deductible by the paying spouse under the rules of the Internal Revenue Service. Combining spousal support and child support into family support is a strategy many high earning spouses should use as they are better off paying family support and deducting a combination of child support and spousal support. Typically alimony is paid in pre-tax dollars and child support is paid in after-tax dollars. That means a dollar of spousal support may cost the paying spouse 60 cents whereas a dollar of child support costs $1.40, assuming the paying spouse pays 40 percent of income in taxes.

Child support in California ends on the emancipation of a child. Emancipation, meaning the child coming of age and capable of self-support. California has its own version of the Child Support Guidelines to help calculate an appropriate amount of support in a case.

Spousal Support might continue beyond the emancipation of the last child, and unlike child support, it is not determined by a set of published Guidelines. Judges have enormous discretion when awarding spousal support and look to the factors enunciated in Fam Code 4320 when awarding permanent support.

Difficulties arise that require discovery when spouses are self employed or not completely candid regarding their earnings. Other complexities arise when a party works below their capacity, refuses to seek employment or is co-habitating.

CUSTODY MODIFICATION

  1. COURT’S STANDARD
    After a dissolution is complete often parties want to change the custody arrangement. This is called a modification. Prior to the court reviewing what is in the best interest of the child, a showing of a change of circumstance must be established. Speelman v. Superior Court (1984) 152 Cal. App. 3d 124. The change must be more then minor. The court looks for a substantial change in circumstances. Burchard v. Garay (1986) 42 Cal. 3d 531.

  2. CHILD’S PREFERENCE
    Often when a dissolution occurs, a child has a preference of where s/he wants to reside. The court must give due weight and consider the child’s wishes, assuming s/he is of “sufficient age and capacity to reason so as to form an intelligent preference as to custody. (Cal.Fam. Code 3042(a)). It is important to note that maturity levels very between children of the same age category, thus there is no actual chronological age which sets a standard. Courts have the ability to be receptive to a child’s preference as they reach adolescence or even younger depending on the child’s individual maturity.

  3. CHILD ABUSE
    Family Code _ 3011 states: In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:
    1. The health, safety, and welfare of the child.
    2. Any history of abuse by one parent or any other person seeking custody against any of the following:
      1. Any child to whom he or she is related by blood or affinity or with whom he or she has had a care taking relationship, no matter how temporary.
      2. The other parent.
      3. A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.

    Family Code _ 3022.5 provides: A motion by a parent for reconsideration of an existing child custody order shall be granted if the motion is based on the fact that the other parent was convicted of a crime in connection with falsely accusing the moving parent of child abuse.

CUSTODY HEARING PROCEDURES

The court where the dissolution is filed has jurisdiction to schedule an Order to Show Cause or Trial.

  1. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA)
    UCCJEA is used in visitation and custody battles between the parties. Since it is a uniform act, in California the state court has authority to interpret its application. Although foreign jurisdictions have not adopted the UCCJEA, it applies in international custody disputes.

    Under the UCCJEA, California may exercise jurisdiction over the custody case if the child has been within the state for six months prior to the proceedings or if California is the “home state” of the child. The following are examples of when the California court may exercise jurisdiction over a custody case:
    1. When there is a significant connection between the state, the child, and one contestant.
    2. When the best interest of the child is satisfied by California having jurisdiction because either no other court has jurisdiction or there has been a decline to exercise jurisdiction from another court.
    3. When the child is present in the state, or must be protected by the state due to alleged abuse or neglect.
  2. PURPOSE OF THE UCCJEA
    There are several reasons why the UCCJEA exists. First, to discourage controversy by creating and upholding binding decisions. Second, to allow jurisdiction of a court to depend on the forum’s connection to the child. Third, to discourage conflicts between sister states. Fourth, to influence parents not to abduct or remove the children from their home state.

LEGAL and PHYSICAL CUSTODY

  1. LEGAL CUSTODY is held by the parent(s) with the authority to make decisions in all aspects of the child(ren)’s life. This includes but is not limited to: religion, welfare, and health. Generally, parties have joint legal custody meaning that both parents have equal authority over their child(ren).
  2. PHYSICAL CUSTODY is held by the parent(s), or guardian(s) who the child physically resides with. Joint physical custody means that both parents have significant periods of physical custody, regardless of disproportionate time allocations. Sole physical custody means that only one parent has most of the responsibilities of raising the child.

EXPENSE OF CUSTODY LITIGATION

Custody litigation is often time consuming due to parties determining if one party or the other is at “fault”. A party’s words, relationship with the child(ren), letters, school attendance and discipline, may be reviewed by a court. Such a process involves an attorney preparing the client on how to correspond with the opposing party, mediators, evaluator, children, and the judge. An attorney may also speak to witnesses and prepare Declarations. Sometimes a psychological evaluation is recommended, which may be expensive.

DOMESTIC PARTNERS/GAY or LESBIAN PARENTS

Court’s have jurisdiction over custody/visitation rights of the child’s non-biological/non-adoptive parent. The court does take into consideration the current “parental” relationship with the non-biological/non-adoptive parent. Courts have found under the doctrine of equitable estoppel an obligation to child support when domestic partners actively participate in causing the children to become part of the family (for example by arranging for artificial insemination of a partner), and holding the child out as their own. Elisa B. v. Superior Court (2005) 37 Cal. 4th 108.

VISITATION: THIRD PARTIES

  1. GRANDPARENTS/RELATIVE
    1. DEATH OF PARENT
      A relative of a deceased person may request visitation with the deceased person’s child. The court considers the best interest of the child and the amount of contact between the child and relative prior to the application of a Visitation Order. Family Code _ 3102.
      Once adoption of the child occurs other than by a grandparent or stepparent, then the Visitation Order terminates.
    2. CUSTODY PROCEEDING
      Grandparents may be a party to any custody proceeding. The court considers the best interest of the child. When both parents agree that the grandparent should not have visitation, then a rebuttable presumption shifts the burden of proof to the Grandparent to show why it is the best interest of the child to have visits.  Family Code _ 3103.
      Grandparents can bring an action for visitation with their grandchildren. The court balances the best interest of the child against the parent’s authority over their children. A Petition under this section can be filed when the parents are married, only if one of the following is present:
      1. Parents are separated
      2. Child does not reside with the parent(s)
      3. Grandparent’s Petition is joined by one parent  
      4. One parent has not heard from the other spouse for one month and their      whereabouts are unknown
        Family Code _ 3104
  2. STEPPARENTS
    A stepparent is a person who is married to the biological or adoptive parent of the child who is the subject of the custody issue. The venue for discussing visitation is during dissolution. The court can not order visitation that conflicts with the custody right or visitation of the other biological or adoptive parent who was not the spouse of the stepparent.   
    The court cannot make a custody award over the biological parent to the stepparent. Visitation by the stepparent can be obtained if the court finds it is in the best interest of the child. Marriage of Lewis and Goetz (1988) 203 Cal. App. 3d 514.
  3. DOMESTIC PARTNERS/ GAY or LESBIAN PARENTS
    Court’s have jurisdiction over custody/visitation rights of the child’s non-biological/non-adoptive parent. The court does take into consideration the current “parental” relationship with the non-biological/non-adoptive parent. Courts have found under the doctrine of equitable estoppel an obligation to child support when domestic partners actively participate in causing the children to become part of the family (for example by arranging for artificial insemination of a partner), and holding the child out as their own. Elisa B. v. Superior Court (2005) 37 Cal. 4th 108.

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Marin County Family Lawyer, Divorce Attorney, & Child Custody Law Firm

The Law Offices of Renee M. Marcelle covers these geographical areas for your legal counsel: Belvedere, Corte Madera, Fairfax, Larkspur, Mill Valley, Novato, San Anselmo, San Rafael, San Francisco, Tiburon, Marin County, Solano County, San Francisco County and Sonoma.

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