Articles Posted in Custody and Visitation

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During a divorce, parents often disagree about whether a certain parenting tactic is appropriate for their children. Divorce can also create a sense of mistrust between former spouses that can affect their willingness to trust the other parent regarding his or her parenting strategy. At the request of the parties (or order of the Court) a child custody evaluation may be performed. Child custody evaluations are meant to determine if granting one or both parents’ custody is in the best interest of the child or if the child is at risk in any way. The professional evaluator will consider the following ten factors in making such a determination.

1. The parent’s ability to make age-appropriate parenting decisions
When addressing this factor, the evaluator may investigate the movie ratings young children are permitted to watch. Do the children have boundaries restricting them from watching R-rated movies? If the parties’ child is a teenager, do the parents enforce a curfew? If so, is the curfew appropriate for the teen’s age?

2. Evidence of the parent’s understanding of and response to the child’s needs
The evaluator will attempt to determine the parent’s involvement in the child’s life. Does the parent pay close attention to the child’s needs? Does the child freely communicate with the parent? If so, does the parent respond in an attentive manner in a way the child can understand?3. The parent’s historical involvement in the child’s life
The evaluator will be especially interested if the parent has been actively involved in the child’s life prior to the divorce. Parents learn early in a divorce case that time the children spend with the other parent can come with a steep price tag in the form of child support. Therefore, the evaluator will consider which parent has been the primary caretaker for the children throughout marriage.

4. How the parent handles custody conflicts with the other parent
Conflict between divorcing parents can have a great impact on their children. Therefore, the evaluator will consider the parent’s history of cooperating with the other parent to reach conflict resolution. Has either parent demonstrated a willingness to sacrifice their interests for the best interest of the child?

5. Perpetration of child abuse
The custody evaluator will investigate current and past child abuse perpetrated against the child at issue and any other children. This is an important consideration in any child custody case. If you suspect child abuse is ongoing it is imperative to contact the proper authorities to ensure the welfare of the child.

6. History of domestic violence
Regardless of whether abuse is perpetrated against the child, the evaluator will thoroughly scrutinize any claims of domestic violence. Specifically, the court will be interested to know whether the child has witnessed any of the abuse. If any temporary and/or permanent restraining orders have been granted between the parties, it is important to bring these to the attention of the custody evaluator. In addition, the evaluator may want to see any police reports filed which reference alleged domestic violence in the case.

7. Substance abuse issues
Any abuse of illegal or prescription drugs and/or alcohol will have a detrimental effect on a parent’s relationship with his or her child. Further, drug and/or alcohol abuse by a parent could present significant danger for a child. For instance, a parent with an alcohol addiction may or may not be able to resist alcohol while the children are in his or her care. If a parent does become incapacitated while caring for the children, his or her judgment may be significantly impaired creating an unsafe environment for children (especially young children).

8. Psychiatric illness
If psychiatric illness is an issue in the case, the evaluator will want to determine if the particular illness at issue poses a risk to the health, wellbeing or welfare of the child. As long as the children are safe and well cared for under the supervision of a parent, psychiatric illness should not be bar to custody rights.

9. Unusual social behaviors
Risky or unusual social behaviors could negatively impact the child and will be considered by a custody evaluator.10. The child’s attitude toward both parents
The age of the child will greatly affect the weight given to his or her attitude toward both parents. For instance, at the age of fourteen, the Court will give consideration to a child’s desires regarding how much time he or she would like to spend with each parent. For younger children, the evaluator will want to analyze the child’s feeling toward his or her parents and whether the child is comfortable with both parents.

In his or her effort to gather information regarding a case, the custody evaluator may review the court file, the child’s health records, observe the child’s interactions with his or her parents, and make collateral contacts with the child’s teachers, therapists or other involved adults.
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Despite the oppositional nature of family law, many cases are able to proceed through the court system with little to no conflict between the parties. However, for a variety of reasons, some cases are so high conflict that the parties are consumed by their family law matter. This high conflict case structure is particularly common in disputed custody and visitation matters. In addition to the emotional and mental drain a high conflict case has on both parties (and their child), conflict also drains the financial resources of the parties especially if one or both parties are represented by counsel. If you think your custody matter is high conflict, here are a few tips on how to reduce further tension between you and your co-parent.

Communication is Key: Conflict tends to arise out of frequent negative communication between the parties. This communication could be harassing due to its volume or the tone of the parties’ exchange. If one or both of the parties have “unfinished business” with each other after the break down of their romantic relationship they sometimes try to hold onto that former relationship by attempting to “get to” the other parent through an ongoing custody matter. In order to avoid this type of conflict, limit all communication to e-mail (except in the case of an emergency). Restrict the topic of communication only to matters related to the children and keep a friendly tone with your co-parent.

Stick to the Letter of the Law: In a high conflict case, giving or requesting leniency regarding the current custody/visitation order often leads to increased complications. In these cases, it is best to stick to the exact provisions of your custody/visitation order or agreement. Further, when the court makes custody/visitation orders, make every effort to request that the court be as specific as possible. This same rule applies to any negotiated custody orders. For example, ensure the order specifies the date, place, and manner of transfer for all exchanges. It is also important to limit the child’s exposure to potential domestic conflict or violence and ensure the safety of all people involved.Keep the Kids out of It: Although children present a wealth of information about your co-parent, never discuss the custody matter or any other adult issues with children. Not only are such conversations detrimental to the children, but if discovered, could be used against the parent and result in reduced (or even supervised) visitation time. Further, most custody/visitation orders contain direct prohibitions restricting both parents’ communication with the children about the pending case and any other adult matters. Thus, such conversations may be treated as a direct violation of a court order and could result in sanctions imposed against the offending party.
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We have previously blogged about different ways technology can be used to gain an advantage or gather evidence in a dissolution proceeding. However, ex-spouses are now learning how to use the advances in technology to foster cooperation and harmony post-separation. Many divorcing couples would prefer to sever the ties between them completely after their divorce is final. This goal is unattainable for ex-spouses who will continue to share custody of minor children for years after separation. The new trend called “joint custody – at a distance” encourages splitting couples to communicate electronically rather than during “in person” exchanges in order to reduce the emotional tension during a “drop off” or “pick up”.

Many parents have found that they fight and argue less in front of their children if they are able to express their emotions through other outlets. E-mail communication, online calendars and a number of other online resources are all available to conflicting parties who share children. By sharing an online calendar parents can easily coordinate a child-sharing schedule. All of the child’s activities and plans are readily available to view and change without any need for in-person or telephonic communication between the parents.

Our Family Wizard is a common solution for parents in conflict. A judge may order parties to use Our Family Wizard, a program which tracks all communication, expenses, and even sends notices to the parties regarding their obligations. Because the communication between parents can be supervised by the judge and attorneys involved in the case, the parties are incentivized to speak civilly to each other. This form of communication can take away the aggravation and emotional side of child-sharing and ease the tension and stress for the children involved. The program can be purchased for approximately $100 per year.

Another form of technology frequently appearing in custody orders is Skype. Skype is a free program that allows two or more people to have an online video conversation. In cases where both parties cannot easily see a child frequently, the court may order “Skype visitation”. During a Skype visit, a parent can have a video conversation with the child. Skype also permits conversations to be recorded and can ensure that the visiting parent is getting enough video time with the child. Additionally, a parent may be ordered to purchase a cell phone for the child in order to avoid any telephonic communication between the parties. This way, if a parent wishes to speak to his or her child during the child’s scheduled time with the other parent, he or she can reach the child directly.
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Jurisdiction is a complicated issue even for experienced attorneys. It is understandable that family law litigants are often unsure regarding where to file their case especially if the parties live in separate states or cities. In addition, jurisdiction may present a problem if one party would like to modify a previous custody and visitation order and neither party lives in the state which originally issued the order. In San Diego, the family court website will direct potential litigants to the particular family courthouse where a case should be filed. San Diego family court jurisdiction is divided by zip code of the filing party. This means that the filing party only needs to enter his or her zip code and the website will direct him or her to the correct courthouse. However, these web tools do not provide guidance for parties with complicated jurisdictional questions.

In general, before a court can exercise jurisdiction over a case (hear the matter) the court must determine it has subject matter jurisdiction and personal jurisdiction over the parties. The subject matter jurisdiction requirement means that the particular court hearing the case must have the legal authority to hear that specific type of case. For example, a bankruptcy court will not entertain a divorce case and a criminal court will not make rulings in a bankruptcy case. In any custody case, family courts will have subject matter jurisdiction over the matter. Therefore, all requests for custody orders or a modification to a current order should be filed with a family court.

If the parents of a child live in separate states, the state where each parent resides will not likely have personal jurisdiction over the other parent. Personal jurisdiction requires one of the following: (1) living in the state with the intent to remain, (2) personal service while physically present in the state, (3) consent, (4) sufficient minimum contacts, (5) or pursuant to a long arm statue. Each of these methods of acquiring personal jurisdiction involves a complicated legal analysis and citation of legal authority not available to most family law litigants. Considering this requirement, it may seem impossible to get custody orders from a state if your co-parent does not live in the same state.

Fortunately, the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) provides clear authority for jurisdiction over custody matters. The UCCJEA states that a child’s “home state” shall have exclusive and continuing jurisdiction for child custody litigation. A child’s “home state” is defined as the state where the child has lived with a parent for at least six consecutive months prior to the commencement of the proceeding. If the child is younger than six months old, the “home state” is the state where the child has lived since birth. Therefore a custody case should be filed in the state where the child resides regardless if one parent lives out of state.
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A divorce may be hands down one of the most difficult things a person can go through. Just like the loss of life, a divorce is a loss of a relationship, the loss of stability, and the loss of life as one has known it to be. Consequently, individuals going through a divorce typically experience some or all of what is known as the five stages of grief. These stages include: (1) denial; (2) anger; (3) bargaining; (4) depression; and (5) acceptance.

Denial:
In the denial stage of grief, an individual going through a divorce is typically attempting to deny the reality of their situation and begins to develop a false, preferable reality. Children under the age of 6 years old are typically not affected by their parents experiencing the “denial” stage of grief because they believe that the situation is only temporary. Grade school children may be affected in the sense that they will come up with their own “magical” explanation for what they perceive is going on. Teenagers are affected differently in that they tend to want to act as the caretaker for the parent who is experiencing the denial stage.

Anger:
In the anger stage of grief, an individual going through a divorce recognizes that their sense of denial cannot continue and instead they manifest anger with themselves or with others, especially those who are close to them. Children under the age of 6 years old are significantly affected by their parent(s) experiencing the anger stage because they tend to assume that the anger is directed towards them. Young children especially think that their parents’ issues are their issues too. Grade school children are the most developmentally vulnerable to alienation while their parent(s) are experiencing the anger stage of grief. They tend to form an alignment with one parent. Teenagers are affected in that they tend to identify with the parent who has been wronged in the divorce. Teenagers begin to form their own opinions and may reject the anger by trying to stay away from it.

Bargaining:
In the bargaining stage of grief, an individual going through a divorce typically hopes that they can somehow avoid or undo the cause of the grief. This stage of grief has the most differences in its affect on children, based on their age group. Children under the age of 6 years old are typically aware of who is or is no bargaining. They may find it frightening because they perceive the parent, who they are so dependent on, as being weak. School age children, on the other hand, get excited about bargaining because they tend to believe in the chance of reunification. Teenagers try to act as a mediator. Teenagers also tend to distance themselves from the weaker parent and align with the parent who will provide them with what they want.

Depression:
In the depression stage of grief, an individual going through a divorce begins to understand the certainty of their loss and may become silent and spend much of their time crying and upset. Surprisingly, children under the age of 6 years old are not typically impacted by their parent(s) experiencing depression. Grade school children, however understand it and expect the other parent to “rescue” the depressed parent. Teenagers, on the other hand, perceive their parent’s depression to be dangerous and typically don’t want any part of it.

Acceptance:
In the acceptance stage of grief, an individual going through a divorce begins to come to terms with their loss and typically has a more objective view and stable, calm mindset. Children under the age of 6 years old are positively affected by their parent(s) going through the acceptance stage because they sense the hope and positivity. Teenagers, however, want to get the most of their parents who experiencing this newfound positivity and typically seek minimal supervision.

Although not everyone experiences the five stages of divorce (or experiences them in a different order) it is important to remember that how a parent deals with the divorce can have a direct correlation to how the child deals with the divorce, depending on the child’s age.
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Throughout San Diego County, custody and visitation is a highly litigated family law issue which causes turmoil within local families. The court system and family law attorneys encourage parents to take whatever steps necessary to ease their children through the divorce process. One of the most important steps a parent can take to help their children through the transitional period of a divorce is to have a conversation with them early to explain what is going on. The nature and depth of the conversation will depend on the age and maturity of the children involved; however, it is always important to reassure children of their security and stability within the family. The following is a list of questions commonly posed by parents who have recently decided to divorce.

Q: Who should tell the children about the divorce?
A: If possible, both parents. It is important to present a “united front” right from the onset when initially discussing divorce. This can reassure the children that they will still have both of their parents and are still part of a family unit. Parents can also brainstorm possible questions their children may ask and come up with agreed-upon answers.

Q: When should we tell the children about the divorce?
A: As soon as possible after you have conclusively decided to get a divorce.

Q: What should we say to the children about the divorce?
A: The truth. While explaining to the children why their parents are separating it is imperative that both parents refrain from any comments which might turn the children against the other parent. An honest explanation regarding the reason for the divorce will encourage the children to come to their parents with their feelings and thoughts on the subject. The first conversation regarding the divorce is also a good time to explain to the children that it is normal to feel upset and sad.

Q: How can we minimize behavioral issues during this transition?
A: Stick to the program. Children experience many significant changes in their lives when their parents are going through the divorce process. Therefore, maintaining established parenting styles is crucial for encouraging behavioral stability. Although tempting, parents should avoid overcompensating their children with gifts or relaxed discipline. This continuation of routine will prove to your children that not everything will change as a result of the divorce.
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In family law, especially cases involving custody and visitation disputes, it can be tempting for litigants to make false allegations in order to get ahead in their cases. However, false accusations have no place in family law and in fact may be severely punished. San Diego family law judges take allegations of child abuse seriously and tend to err on the side of caution if there is any doubt to an allegation of abuse. There are three main statues which stand to deter litigation tactics involving false allegations of abuse by providing the following remedies to the falsely accused.Sanctions: Family Code section 3027 provides family courts with authority to impose monetary sanctions upon any witness, party or party’s attorney who knowingly makes false child abuse or neglect accusations during custody proceedings. The amount of the sanctions imposed will be calculated based on all costs incurred by the accused as a direct result of defending the accusation plus fees and cost associated with bringing the sanction request. It is important to note that the court may impose monetary sanctions in addition to (not in lieu of) any additional remedies requested. The requesting party, however, must be sure to bring their claim for sanctions within a reasonable time of their exoneration.

Supervised Visitation or Limited Custody/Visitation: Family Code section 3027.5 provides that the court may order supervised visitation or limit a parent’s time with the child if the court finds that that parent made knowingly false accusations of child abuse against the other parent. In order to prevail on a claim brought under this code section, the accused parent must also show that the accusations were made with the intent to interfere with the other parent’s lawful contact with the child (particularly during the pendency of a custody proceeding). The court will also take into consideration whether supervised visitation or limited custody/visitation is necessary to protect the child’s health, safety, and welfare balanced against the child’s interest to have frequent and continuing contact with both parents.

Mandatory Reconsideration of Custody Order: A parent falsely accused of child abuse or neglect has the option of pursuing criminal charges against the accusing parent. If the accusing parent is convicted of a crime in connection with false allegations of child against the other parent, the falsely accused parent may move for reconsideration of the existing child custody order. A parent’s motion for reconsideration of such an order must be granted under these circumstances.
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In the midst of a New York divorce case, father David Schorr gave his son a common ultimatum when his son demanded McDonald’s for dinner – “you can have dinner from anywhere besides McDonald’s or have no dinner at all”. In response, the stubborn five-year-old decided to have no dinner at all and threw a tantrum. Schorr immediately regretted the harsh position he had taken with his son but felt it was inappropriate to back down in response to his child’s outburst. While trying to convince his son to change his mind, Schorr took his son back to his mother’s house early and waited for her to return home.

In the Schorr divorce, the court appointed a neutral psychologist to evaluate the parenting abilities of both parents in the context of the best interest of the child. The psychologist recommended that, considering the “McDonald’s incident,” the Court should eliminate or limit Schorr’s weekend visits with his son. During the pendency of the divorce, Schorr has alternating weekend visits with his son and dinner with him each Tuesday. In response to the psychologist’s statements, Schorr has filed a lawsuit against her for defamation. As the suit was filed in early November, there is little information available regarding its progress.

During the pendency of a divorce action where child custody and visitation is a disputed issue, each party’s parenting is under strict scrutiny. In the Schorr case, one father’s attempt to teach his son discipline cost him time with his child. It is hard to imagine that legal parenting tactics such as spanking (within reason) and other various forms of discipline can result in a parent losing custody of his or her child. Outside of the parameters of a divorce case, if a problem is reported to authorities, such parenting decisions would be evaluated by Child Protective Services (“CPS”) rather than a court-appointed psychologist. It is not likely CPS would have removed a child from his father’s care based on the McDonald’s event described above. This is a cautionary tale for all parents involved in a custody dispute, even one “mistake” could cost you valuable time with your children.

In a California custody case, the court, the parties, or the attorneys have the ability to request a neutral evaluation be conducted by a mental health professional (like in the Schorr case). If both sides agree a neutral is needed, they can stipulate (agree) to appoint an evaluator without Court intervention. Generally, once the evaluation is complete, the evaluator will prepare a report outlining his or her findings. The expert’s report may be read by both parties and the judge in the case.
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In October of 2013, Orlando Bloom and Miranda Kerr announced that they will be ending their marriage. However, TMZ reports that despite their impending divorce, they still intend to remain a family and hold no hard feelings against one another. Although this attitude could change as the divorce progresses, perhaps Bloom and Kerr will instead be an example of how divorce doesn’t always have to be a nuclear experience. However, this will likely only be achieved if they avoid some of the common mistakes described below.

1. Avoid Responding to the Divorce with Anger
The divorce process can be an extremely emotional time and it’s very typical for people to say things they do not mean or to act in uncharacteristic manners. Responding to the divorce with anger will simply create an escalating war between you and your spouse and will lead you nowhere but backwards. Instead, let a little time pass and try to blow off some steam before reacting so that you can move the divorce forward in a reasonable manner.

2. Avoid Bringing a Significant Other Into the Mix
While you might have the urge to announce your new lover as a form of revenge to prove to your spouse that someone else finds you attractive and that you can be happy without your spouse, the divorce process is already potentially volatile so just mentioning that you have a new lover has the potential to absolutely infuriate your spouse. The more infuriated your spouse is with you, the less chance you have of a quick and painless divorce. Thus, it might just be best to wait until the divorce is over before you think about engaging in a new relationship.

3. Avoid Concealing Information
Many people going through a divorce find it quite tempting to omit or conceal pertinent information in their divorce case, typically surrounding finances. If you think that nobody will ever find out, think again. The majority of times someone like a forensic accountant or a private investigator for instance, does find out. And when this happens, you immediately lose credibility and cause increased litigation costs. All in all, hiding information is just not worth it.

4. Avoid Reducing the Time Spent With Your KidsDuring the divorce one spouse typically moves out of the family home at some point. When this happens, that spouse tends to get preoccupied with the divorce process, or gets busy with work trying to make more money to be able to afford living away from the family home. As a result, time spent with the kids is often much less than what it used to be. This is one mistake to surely avoid. During your divorce, spending time with your children should be one of your top priorities. It might also be a good idea to keep a journal logging hours spent with your kids and what you did during those times. When it comes to child custody determination this might be helpful. More importantly, spending time with your children will probably help make you feel whole, despite the destruction that divorce is causing.
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For most litigants in San Diego, divorce is a heart-breaking and devastating process. Much of the fear, anxiety and turmoil are created by the many “unknowns” a divorcing spouse faces. If a person is getting divorced for the first time, he or she generally has no idea what to expect with regard to finances and child custody and visitation. Local divorce attorneys can provide a road map of the divorce process but cannot offer solid guarantees for the future. In the beginning of a divorce case where custody and visitation is at issue, many parents ask: “What is normal?” Although there is no general consensus of “normal” in family law, a number of arrangements have become “typical”.

With the holidays approaching many divorcing parents are anxious to find out how that first holiday season should be handled. Every set of facts is unique and how the holidays proceed is generally dependent on the relationship between the parties. In some cases the parents are proceeding with an amicable divorce and agree to share the holidays together with their children. Although this might not be the most comfortable arrangement for the parents, it reinforces stability for the children during this tumultuous time. If the parents cannot get along, it may not be advisable to spend holidays together in the presence of the children. Another alternative for parties capable of working productively together is to share the children on each holiday. For example, the children might spend Christmas morning with their mother opening gifts and then later go with their father to enjoy Christmas dinner.

If you are a parent looking to arrange a more long-term child-sharing schedule for the holidays, you might consider the following options:

Alternate Holidays Every Year

Frequently parents set up an “alternating system” in order to fairly distribute holiday time. In this type of system one parent will have the children on certain holidays (for example Christmas and Easter) in even numbered years and have the children on the other holidays (for example Thanksgiving and New Year’s Eve) in odd numbered years. The other parent will have the children on the same holidays alternating years. By breaking up the holidays the parties ensure they both have some holiday time with the children each year.

Exchange Holidays Within the Year

In some cases, the parties have different holiday priorities and are able to agree to a holiday schedule wherein they have time with the children on all holidays which are important to them every year. This is possible in situations where one parent celebrates different holidays (Hanukkah) than the other (Christmas). Some families emphasize Christmas Eve while others focus on Christmas Day. The most obvious example of this option would be where the children spend Mother’s Day with their mother, and Father’s Day with their father. Parents are encouraged to discuss these possibilities when determining an ongoing holiday schedule. In all cases, if a holiday schedule exists, it does take precedent over the general timeshare plan.
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