Articles Posted in Custody and Visitation

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Once parents have split and begin residing in separate homes, a common issue in divorces involving children is the decision of where the child will go to school. This is particularly of concern when the parents begin residing in different school districts and don’t see eye to eye on where the child should be getting their education. It wouldn’t be fair to make the child switch schools each week when he/she switches households. So, who decides where the child will go to school in this situation?

Determining where your child will go to school depends on the parties’ custody agreement that has been made an order of the court. There are two types of custody in a divorce case, physical custody and legal custody. Physical custody refers to where the child will live after separation or divorce. Legal custody, on the other hand, refers to who will have the right to make major decisions about the child’s health, welfare and education.

If one parent is awarded sole legal and physical custody of the child then the decision of where that child will go to school is left solely up to that parent and typically based on that parent’s residence. The other parent won’t have any legal rights to chirp in regarding where to enroll the child. However, in many California divorces, the parents are awarded joint physical and legal custody of their children. This means that both parents will have significant periods of physical custody such that the child has frequent and continuing contact with both parents. Additionally, both parents will have equal rights to make decisions about the child’s education. This often becomes a problem when the parents reside in different school districts and their preferences don’t align regarding where the child should attend school.Unless the custody agreement provides otherwise, the child will typically be able to attend school in either the school district in which mom resides or the school district in which dad resides. One parent may prefer his/her school district because it will be easier for transportation purposes. Or maybe the other parent thinks that his/her school district has a better sports team for the child. Whatever the parent’s reasoning may be, the issue needs to be resolved before the school year begins. If the parents are unable to reach a mutual agreement on which school their child will attend, then the issue will need to be litigated.
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A custody battle is all about your children so your actions and behavior during the custody battle should also be all about the children and making sure that they are the top priority. Below are some tips for things to do or not do if you are fighting for custody of your child or children:

1) Do not discuss legal matters around your child. No matter how angry or upset you are with your spouse, your child is not the person you should be venting to about the divorce. Consider meeting with a therapist or at least save the divorce discussions for your adult friends.

2) Despite the anger and resentment you may have towards your soon to be ex-spouse, do your best to encourage your child to have a relationship with your soon to be ex-spouse. It’s important for a child to have both a mother and father role model in his/her life.

3) Avoid separating your child from your soon to be ex-spouse’s family members (i.e. grandparents, aunts, uncles, etc.). Remember that just because you and your spouse have chosen to call it quits doesn’t necessarily mean your child should have to forfeit his/her relationships with extended family members. Also, when you feel the urge to say something bad about your ex’s family members, remember that even after the divorce your child will still be related to them even though you will not.

4) If you have been ordered to pay child support, do not withhold that support just to punish the other parent. By doing so, you will ultimately be punishing and deprived your child as child support is meant to help out with expenses related to the child.

5) Respect your spouse’s privacy rights when your child is in his/her care. As much as you may want to snoop on your spouse and make sure that your kids are being taken care of, the more respect you show your spouse then more you will likely receive in return. Additionally, so long as your child is not in danger, avoid trying to control every move of what your child does while in the custody of your spouse.

6) Be open to the possibility that a 50/50 shared custody arrangement may not be in the best interest of your child. Keep your child’s unique needs in mind. This is especially true if you have a special needs child who may not react well to change and different environments.
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According to CNN, Cara Cox was reunited with her mother, Jodie Borchert, 4 years after vanishing from Florida with her father, Aaron Cox, against child custody orders. Cara Cox was just 8 years old at the time when she was taken by her father following a weekend visit. For nearly 4 years there were no leads on Cara’s whereabouts. However, a break in the case came on May 12, 2014 when a tip led authorities to a remote area in Mexico, 1,700 miles away, where both Cara and her father were living under aliases. Authorities arrested Aaron Cox and recovered Cara. For Cara’s mother, the wait was finally over.

For some divorcing couples, the fear of your spouse abducting your child in violation of your child custody orders is a serious concern. If you are going through a divorce or have recently divorced, there are some precautions that you can take. First, it is important to keep a record of important information about your ex-spouse including his/her social security number, driver’s license number, vehicle description and license plate number, physical description, etc. Second, it is important to keep a record of important information about your child including his/her height, weight, hair color, eye color, fingerprints, and any unique physical characteristics. Third, it is recommended that you keep an updated list of addresses and telephone numbers of your ex-spouse’s relatives and friends both here and abroad. Lastly, you should take photographs of your child every six months because a recent photo may prove very helpful if your child is abducted by your ex-spouse. Also, as much as you may not want to keep any pictures of your ex-spouse around, keep a recent photo of him/her on hand as well for the same reason.

There are many great smart phone apps to help you keep your child’s information handy, such as The FBI Child ID. Created by the Federal Bureau of Investigation, this app lets parents store their children’s photos plus other identification (height, weight, hair and eye color, age) for quick access if a child ever goes missing. The information is stored on the iPhone only until parents need to send it to authorities. Notable features include safety tips, checklists for what to do if something happens to your child, and shortcuts to dial 911 or the National Center for Missing and Exploited Children. Parents also have the ability to email info immediately to law enforcement agencies if the unthinkable occurs. (Free; iPhone, iPad)Another great smart phone app is Find My Kids. Using GPS in real time, this app helps you keep track of and automatically locate where your child goes with his phone. If he’s traveling alone, you can confirm that he arrived at a specific destination, or if he’s meeting up with friends, they can confirm each other’s locations. Location info is never shared with anyone else beyond those who have permission to see it, and data is saved for later review. Even though the app is free, parents will need to purchase a subscription for the tracking feature. (Free to download, service requires a monthly fee; iPhone, iPad)

If your child has been abducted you will likely experience a tremendous amount of shock and emotions and won’t be able to think clearly. Thus, it is important that you take the above precautions so that you are prepared for this awful situation.

If you think that your child is at risk of being abducted by your ex-spouse then is it vital that you have a very clear child custody order that outlines the extent to which your ex-spouse has authority to travel with your child. You should keep a copy of the current order in a safe and easily accessible place. Although court orders are not typically recognized in foreign countries, the Hague Convention is an international treaty that provides a method of returning a child who has been abducted by a parent (in violation of custody and visitation orders) from one country that is a member of the Hague Convention to another country that is a member of the Hague Convention.
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In today’s day in age, most of us are guilty of being hooked on technology. If you’re going to spend a significant portion of your day on your technology devices, then why not use that technology to your advantage when going through or after a divorce. Both during and after a divorce, problems often arise between spouses when there is co-parenting involved. However, there are several apps that you can download on your smart phone or iPad to help make co-parenting with your ex-spouse easier.

2houses: This app makes co-parenting easier by offering digital tools to allow both parents to easily communicate and make arrangements with regards to their children. The app offers everything from school to activities to medical issues. Both parents are able to view a joint calendar. There are also tools to help divorced parents sort out who will pay for what related to their children. Expenses can easily be entered and then the app will determine when a balance is achieved based on the input information that the parents put in. The journal on the app also allows both parents to share information about the children. Lastly, the information bank gives both parents access to vital details, such as phone numbers, immunization records, shoe size, etc.

Our Family Wizard: This app includes a calendar, journal, message board, expense log, info bank for safe storage of family information, and a notification center. Parents can utilize this app to share messages, communicate regarding expenses and update your ex-spouse about your child’s appointment, all without having to involve the child as the messenger.Cozi: This is another great app for sharing calendar items, to do lists and contacts with your ex-spouse. For instance, you might want to add contact information for your child’s soccer coach or doctor’s office so that both spouses have quick access to the contact information when he/she has custody of the child. The calendar is also great because it is a shared calendar, meaning if you add your child’s dentist appointment on the calendar it will automatically show up on your ex-spouse’s calendar and you can even send him/her a reminder through the app.

Baby connect: Keeping track of your child’s feedings, diapers, sleep, medicines and activities can be difficult when custody of the child is changing hands between mom and dad. Using this app will help you keep track of all of this.

Skype: Skype is a great way to facilitate “face-to-face” communication via video chat between your child and the other parent when the child is in your custody.

These are just a handful of apps that help to make co-parenting life easier. Utilizing one of these apps has the potential to reduce tension, stress and fighting between the parents by allowing them to communicate without the need for face-to-face contact or using the child as the “messenger.” In turn, both parents will more effectively stay informed about what it going on in their child’s life, even when the child is in the other parent’s custody.
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Relocation throughout the United States is generally a simple process; therefore, it is not uncommon for one or both parties to move to a different state after a divorce. In such cases, parents are faced with a jurisdictional dilemma with regard to their custody and visitation issues. Frequently as children get older their needs and schedules change significantly. In some cases the parents are able to adapt to new situations and reach agreements to modify outdated custody and visitation orders. However, in more high conflict cases, court intervention is necessary – especially if the parents no longer reside in the same state.

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is the governing law for determining whether a court can exercise jurisdiction over a custody and visitation matter. Under the UCCJEA, a California court may not modify another state’s custody order unless (1) the California court has jurisdiction to make an initial custody determination AND either (2) the court of the other state determines that it no longer has exclusive, continuing jurisdiction OR (3) a California court or a court of the other state determines that the child, the child’s parents and any person acting as a parent do not presently reside in the other state.California has jurisdiction to make an initial custody determination if California is the home state of the child on the date of the commencement of the proceeding. The “home state” is defined as the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. Therefore, unless California is currently the home state of the child, it will not proceed with the rest of the analysis to consider whether it can modify another state’s order.

Once California has determined it is the home state of a child, the parties must meet item two or item three discussed above. If the court that made the initial child custody determination determines that it no longer has exclusive, continuing jurisdiction because the child and one parent fail to have a significant connection with the state and substantial evidence concerning the child’s care, protection, training and personal relationships is no longer available in that state, California may modify another state’s order. In addition, if none of the parties continue to reside in the state which made the initial custody order, California may modify an out-of-state custody order as long as all of the proper procedures have been followed.
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At the heart of any divorce proceeding involving minor children should be the consideration of what is in the child’s best interest. In high conflict cases, where the divorcing parents cannot come to a mutual agreement regarding the custody arrangement for their child or children, the court will need to get involved to determine the appropriate allocation of physical contact and decision making authority that each parent will have with the child. Often times, in order for the Judge to determine what is in the best interests of the child, he or she will need to order a Child Custody Evaluation.

In California, a Child Custody Evaluation is also often referred to as a “730 Evaluation” because California Evidence Code Section 730 permits the court to appoint one or more experts to investigate, render a report and testify as an expert in order to help the Judge determine what is in the best interest of the child. This type of forensic evaluation is much more extensive and formal than just a court-ordered custody investigation. Specifically, if there are concerns about mental health issues, child abuse, substance abuse, parenting practices that may have a negative impact on the child, move away cases, etc. a 730 Evaluation will likely be needed in order to get a thorough, objective and competent analysis of the parents and an assessment of what is in the best interests of the children.Qualified examiners include Marriage and Family Therapists, Licensed Clinical Social Workers, Psychiatrists and Psychologists. In California, the Judge typically selects the evaluator from an approved panel or a list submitted by the parties (so long as the recommended evaluator meets the list of criteria required). The evaluator will be required to act as a professional expert and must act as a neutral throughout the evaluation. 730 evaluations typically involve observations, review of documents and medical records, clinical interviews with the parents and children, and psychological assessments. Any formal psychological testing, however, must be completed by a trained psychologist. It usually takes at least three months to complete all of the necessary evaluations and to draft a detailed written report.

Since the Judge does not know the family personally, he or she will typically depend on the opinion of the expert to understand the parties and their nature of interaction with the child. Ultimately, the main focus of the Judge is to uncover what is the best interest of the child. Therefore, a 730 evaluation usually includes a written recommendation for what the evaluator believes, based on his or her expert opinion, is in the best interests of the child. While the evaluator does offer his or her input, the Judge is the one who ultimately makes the decision regarding child custody. But, the evaluator’s recommendation is usually taken very seriously by the court who may give significant weight to the evaluator’s recommendation. The evaluator may also be brought into court to further explain or defend his or her recommendations. In some situations the evaluator may even be ordered to conduct further studies of the issue at hand. In any case, 730 evaluations can play a big role in high conflict custody cases.
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As blogged about in Part 1 of my previous blog entitled “More than Two Legal Parents Recognized in California Family Law Courts” new legislation was enacted changing the traditional perception of “family” in the California court system. Until recently, children were presumed to have only one or two parents. Having three parents was not even a consideration. However, under the new law, which went into effect January 1, 2014, Courts are now able to recognize that a child may have more than two legal parents.

The modification of Family Code Section 3040, as discussed in Part 1, gives the Court authority to allocate child custody and visitation among all parents in the case of a child with more than two parents. Such allocation must be based on the best interest of the child, including stability for the child by preserving established emotional bonds and patterns of care that the child has had. While the modification of Family Code Section 3040 focuses on custody and visitation, the addition of Family Code Section 4052.5 sheds light on the Court’s authority to allocate child support when a child has more than two parents.

Family Code Section 4052.5 dives deeper into the realm of recognizing that a child can have more than two legal parents and gives family law courts the authority to divide child support obligations among all parents under certain circumstances. Specifically, Family Code Section 4052.5 provides, in part, the following: “The statewide uniform guideline, as required by federal regulations, shall apply in any case in which a child has more than two parents. The court shall apply the guideline by dividing child support obligations among the parents based on income and amount of time spent with the child by each parent, pursuant to Section 4053.” However, this section further provides that “… the presumption that the guideline amount of support is correct may be rebutted if the court finds that the application of the guideline in that case would be unjust or inappropriate due to special circumstances, pursuant to Section 4057. If the court makes that finding, the court shall divide child support obligations among the parents in a manner that is just and appropriate based on income and amount of time spent with the child by each parent.” [emphasis added]. In other words, the Court may deviate from statewide uniform guideline in the case where a child has more than two parents, when it is just and appropriate to do so.Giving Courts the discretion to allocate child support obligations (or receipt of child support) to more than one parent is significant because it allows for the financial responsibility of a child post-divorce to be distributed among all parents who are involved in raising the child based on each parent’s income and respective time spent with the child. As a result, children are afforded the legal opportunity to be financially supported by all of the adults that play a central role in his or her care.
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If you open up a fresh copy of the 2014 Family Law Code and do some heavy reading, you might notice the modifications to Section 3040, 4057, 7601, and 8617 as well as the addition of Section 4052.5. Back in October 2013 new legislation was signed which now allows California Courts to recognize that children can have more than two legal parents. Although conservative groups viewed this new legislation as an attack on the traditional family structure, the purpose of these new and modified sections is to address changes in family structure that are often present in California. These include the “not so uncommon anymore” situation of a same-sex couple having a child with a biological parent of the opposite sex.

The basis for the legislation apparently arose as a reaction to a 2011 court decision (In re M.C (2011) 195 Cal.App.4th 197) that involved a same-sex couple who ended their relationship for a brief amount of time. One of the women conceived a child with a man (and began raising that child with the man) prior to resuming her relationship with the other woman, whom she ended up marrying shortly thereafter. After a fight put one of the women in the hospital and the other in jail, the child was sent to foster care because although all three adults seemed to meet the criteria to be a legal parent of the child, the biological father did not have parental rights under the law at the time. The court reasoned that it was prohibited from recognizing that more than two people may claim a right to parentage.

In response to the Court’s ruling in In re M.C., the Family Code was modified to give Courts the authority to expand the interpretation of the parent and child relationship. Specifically, Family Code Section 7601 provides that Courts are not precluded from making “a finding that a child has a parent and child relationship with more than two parents.”Allowing the Courts to recognize that a child may have three or more legal parents is quite significant for purposes allocating custody and financial responsibility during and after a dissolution proceeding. With regard to the allocation of custody and visitation, Family Code Section 3040 has also been modified to provide for the following: “In cases where a child has more than two parents, the court shall allocate custody and visitation among the parents based on the best interest of the child, including, but not limited to, addressing the child’s need for continuity and stability by preserving established patterns of care and emotional bonds. The court may order that not all parents share legal or physical custody of the child if the court finds that it would not be in the best interest of the child as provided in Sections 3011 and 3020.” [emphasis added].

As a result of this modification, Courts have the ability to prevent children from being separated from an adult that he or she has always known as a “parent” simply because of a technicality in the law. This modified section allows Courts to place the interest of the children first by giving them the authority to protect children from the emotional and psychological impact of being separated from one of his or her parents. Thus, rather than having to place a child in foster care, the Courts are now able to consider the presence of someone who has played a vital parental role in the child’s life.
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Going through a divorce may be equally difficult for the children of the divorce as it is for the two spouses. Although they may show their grief in different ways, children are typically grieving right alongside their parents.

The news of an impending divorce usually causes children to initially experience feelings of shock. Although they may appear to be functioning okay on the surface, children are likely stunned at first and beginning to cope with their “loss” beneath the surface. As a result of their shock and numbness, a child’s ability to concentrate and think clearly may be impacted. As a parent, you can help your child cope by being patient, giving your child space to think through and process everything, and making yourself available to your child when he/she is ready to talk and have you listen.

A divorce may also cause children to experience feelings of searching or yearning. This typically results in the child “acting out” or possibly withdrawing from others. They may appear to be angry, restless or even bewildered. As a parent, you can help your child cope with these feelings by remaining calm, allowing your child to express his or her feelings and realizing that their feelings may change significantly each day.During a divorce children may also appear very disorganized or disoriented. This is a result of their extreme sadness or depression that they are experiencing as a result of the divorce. This may cause children to lose their appetite, have trouble sleeping, and even lack enthusiasm for the things that they used to enjoy. While a child is experiencing these feelings during a divorce, as a parent you can help by ensuring that your child gets the adequate sleep and nutrition that his or her body requires. It is also important to continually make yourself available and to provide opportunities to spend time together.

Lastly, children typically (and hopefully) go through a stage of acceptance in which they begin to accept the loss and perceive an opportunity for reorganization and resolution. During this stage, children appear to have more energy and seem less sad. As a parent, you can encourage your child to share his or her feelings. However, it is important to realize that your child may slip back into one of the previous stages of grief. Therefore, it is important to remain alert to your child’s mental state and behavior.

Although the parents may be overwhelmed with their inevitable emotions that come along with a divorce, it is important to take a step back and help your children cope with the divorce and corresponding stages of grief that they are experiencing alongside you.
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Sibling relationships are often the longest and most important relationship a child will develop. But what happens to that relationship when siblings are torn apart as a result of two parents that can’t get along and decide to divorce. In many divorces, custody disputes become very heated and in some extenuating circumstances, the result is that siblings are separated. This type of custody arrangement referred to as “split custody” (although not defined by the California Family Code) results in each parent being awarded custody of at least one child of the marriage at all times, meaning that the children will live separate and apart from his/her sibling. Sounds like a real life version of the movie, The Parent Trap, doesn’t it?

Luckily, splitting siblings up between the divorcing parents is extremely rare. As would be expected, Courts generally believe that it is in the children’s best interest to live with their siblings and not be split. Divorces are difficult enough on a child so separating them from their siblings is often considered to be too much of a change and detriment to the children on top of the divorce itself. California public policy provides that the bond between siblings should be preserved whenever possible. Parents should want to do everything they can to maintain that sibling relationship as well.

If fact, courts disfavor separating siblings so much that an order separating siblings between custodial households will typically be reversed because it is deemed detrimental to the children’s best interests. Courts have argued that children should not be treated like another piece of community property to be divided equally for their parents’ benefit. Rather, children have a right to the companionship of their siblings.However, there are times when a “split custody” arrangement might appear to be a good idea for the children. For instance, there are some situations where the siblings are so combative and abusive to one another (perhaps as a result of one of the children having a mental health problem) that it would be toxic to keep them in the same household. Another situation is where there is conflict between a sibling and a parent such that it might make sense to place the children with the parent that he/she is less combative with. Or perhaps, one parent relocates and one of the children has more educational opportunities in the other state
Nonetheless, even where there may appear to be a compelling reason for splitting up the custody of siblings, it is not always the right solution. Rather, it is important to strongly consider the impact of sibling separation on all children involved and to preserve the sibling bond whenever possible.
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