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Custody and Support, divorce lawyer


Renee Marcelle completed the requirements fCourt 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 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.


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.


        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.
        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.
        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.


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

        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.
        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.


  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.


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.


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.


           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.
           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
        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.
        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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