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.
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.
LEGAL and PHYSICAL CUSTODY
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