Articles Posted in Custody and Visitation

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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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As we have previously blogged in “Understanding Parental Alienation in California Part 1,” parental alienation can be extremely detrimental to the children and alienated parents involved. Luckily, there are ways to combat parental alienation and attempt to reunite the child and alienated parent who have been affected by parental alienation.

How Courts Deal with Claims of Parental Alienation

Courts have found ways to address claims of parental alienation and seek remedies that will repair broken relationships and help establish both parents as having a role in raising the child. In mild to moderate cases of parental alienation, a child custody evaluation will typically be performed by an expert to determine how severe the problem is and what kind of therapy and child time sharing should be recommended to help improve the relationship between the child and “alienated” parent.

However, in severe cases of parental alienation, sometimes the only solution is to remove the child from the parent who is alienating the other parent and to instead place the child with the alienated parent. But, before a judge will change the custody arrangement, they will typically require that a psychological evaluation to be done. Unfortunately, such evaluations can take anywhere from three months to a year to complete. In addition, some evaluators will simply argue that the detriment caused by parental alienation can simply be cured with therapy and thus the evaluator will not recommend a custody change to the alienated parent, but instead will recommend a reunification plan involving therapy. If it appears that reunification is not working then the court will typically want the same or new psychologist to re-evaluate the situation, which will take additional time.

Reuniting Alienated Parents with the Child

As an alienated parent, reuniting with your child can pose several challenges. As a result of the parental alienation the relationship with the child is likely very fragile and must be handled carefully in an attempt to repair what has been broken.

However, with proper psychological care, time and patience it is possible to attempt to reverse the effects of Parental Alienation Syndrome and mend your relationship with your child.

It is also advised that the alienated parent not retaliate against the other parent. Rather, if the alienated parent acts reasonably then the parent who is causing the alienation will hopefully be influenced to do the same.
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While broken marriages can be stressful and emotional for both spouses involved, it is typically the children who end up suffering the most throughout the parents’ continued divorce battles. One prime example is where children end up suffering from “parental alienation syndrome,” which is commonly associated with child custody battles that occur during and after divorce. Parental alienation can be extremely detrimental to the child and the alienated parent alike.

What is Parental Alienation?

Parental alienation occurs when one parent acts in a manner that attempts to cause the child to reject the other parent by undermining and thwarting the child’s relationship with the other parent. The purpose of such alienation is usually an effort by one parent to gain or keep custody of the child.

The following behavior will typically lead to claims of parental alienation:

  • Not allowing the other parent to see or visit the child;
  • Refusing to allow the child to talk to the other parent on the phone;
  • Mis-informing the other parent about child’s special events so that it appears that the other parent chose not to attend;
  • Creating a perception that the other parent is dangerous;
  • Discarding mail or gifts sent to the child by the other parent;
  • Creating expectation that the child must choose a side; and
  • Bad-mouthing the other parent.
Parental Alienation’s Effect on the Children – PAS

Parental Alienation Syndrome (“PAS”) is a form of psychological injury to the child as a result of the above behaviors, wherein the child becomes “brainwashed” or manipulated into viewing the alienated parent in a negative light. As a result, the child adopts negative views of the other parent which in turn causes the child to reject the other parent and choose no longer want to spend time with that parent.

This can be extremely detrimental for any child. However, it is important to note that Parental Alienation Syndrome is not recognized a psychiatric diagnosis, but rather it is a theory that was developed by Dr. Richard Gardner. Nonetheless, there is even scholarly consensus that parental alienation (which leads to Parental Alienation Syndrome) is a form of abuse to children.

Parental Alienation’s Effect on the Parents

The impact of parental alienation is not only detrimental to children involved but also to the alienated parent, who involuntarily loses contact with the child, which in turn impairs his/her relationship with the child. In severe cases of parental alienation, the love and bond that the alienated parent once had with the child may be completely destroyed beyond what seems possible to repair.

In Understanding Parental Alienation in California Part 2 we will explore ways that courts deal with claims of parental alienation and tips for reuniting the alienated parents with their children.
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California child custody laws have most certainly evolved during our history as a state. Historically, it appeared that mothers were favored in court to get custody of the parties’ children just because they were female. Mothers were pretty much guaranteed to get custody of the children, while even the best fathers were only given a limited visitation schedule while the children. Perhaps this was because traditionally mothers were viewed to be the more nurturing of the two parents; they were viewed as the parent who does everything in their power to make sure the children are taken care of properly and grow up right.

Despite popular belief, such favoring of mothers in child custody arrangements is not the case today. In this modern day in age, most states’ laws actually prevent the courts from considering a party’s gender when making a ruling on child custody. In San Diego, courts grant equal rights to both mothers and fathers in child custody cases. California Family Code Section 3040 specifically states that “custody should be granted… according to the best interest of the child…and shall not prefer a parent as custodian because of that parent’s sex.” Moreover, it is the public policy of California to ensure that children have frequent and continuing contact with both the mother and father.

Read more about child custody and visitation modification

The legal standard of “the best interests of the children” requires a court to take various factors into consideration, not including gender, when making a decision regarding the care and custody of the parties’ children. The Family Code sets forth various factors that a court will consider, including but not limited to, the following:

  • Any history of abuse or neglect by either parent;
  • The habitual or continual illegal use of controlled substances;
  • The habitual or continual abuse of alcohol or prescribed controlled substances by either parent;
  • The overall health, safety and welfare of the child;
  • The requests of the parents;
  • The requests of the child if the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation (Family Code 3042);

Thus, the main concern of any San Diego family law court is what custody and visitation arrangement is going to be consistent with the children’s best interests. A parties’ sex, therefore, will not determine who gets priority for being awarded the care and custody of the children involved.
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A divorce can be quite devastating for all parties involved, especially the children of divorcing couples whose lives are often affected in a variety of ways. One issue that frequently arises during a divorce is a dispute over where the children will attend school after the parents have moved their separate directions. Children with parents involved in an active divorce case at family court often worry that they will be uprooted from the friends and teachers that they have come to know, or that they will bounce around between different schools each year.

So who exactly gets to decide where the minor children will go to school after a divorce? Divorce lawyers will advise their clients that the answer depends on the custody order. When one parent has sole legal custody, then that parent has the right to choose which school the children will attend without the input of the other parent. On the other hand, when parents share joint legal custody, they have to agree on various important decisions related to the children, including which school to send their children to.Thus, one parent cannot enroll the parties’ minor children into a school without the consent of the other parent. If the joint custody/parenting plan doesn’t already address the issue of which school the children will attend, then the parents either have to come to an agreement on their own, agree in mediation, or direct their family law attorney to file a motion and take it to court for the Judge to decide. If the Judge is left to decide which school the minor children will attend, the Judge will typically look at what is in the best interests of the children. Some factors include, but are not limited to, desires of the children/parents, previous school selection by the parents, academic standard, proximity to custodial parent, children’s educational needs, commuting time from each parent’s home, tuition cost, etc. In situations where the children are already attending a certain school, then the likelihood of them continuing to attend that school is quite high, unless a compelling case is made that continuing attendance at that particular school is not in line with the children’s best interests. However, when the children are about to start kindergarten or are transitioning into a middle school, junior high school, or high school, then the decision might be a bit more complicated and the Judge will have to take various factors into consideration.
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School is finally out and the sun is shining…summer vacation has officially arrived! Unfortunately, child custody arrangements are a hot item for potential conflict during the summer months because the daily routine often goes out the window leaving the possibility for chaos to emerge. Spending the warm carefree summer months battling over child custody issues is not fun for either parent and it is certainly not fun for the kids. Kids look forward to summer vacation all year long so it’s important that divorced or divorcing parents deal with summer vacations and child custody arrangements in a cordial way.

Child custody in the summertime doesn’t have to be plagued by conflicts! Here are some tips for avoiding those potential conflicts with your spouse and your kids during the three school-less months:

Plan vacation schedules in advance
Agreeing on a vacation schedule is the first step in dealing with child custody during the summer months. A vacation schedule can replace a regular child custody agreement if it is approved by a court and made legally binding. Agreeing on a temporary schedule for the summer vacation months well in advance will help to avoid many potential conflicts.

Foster good communication with the other parent
It is absolutely crucial to communicate with the other parent and notify him or her of any vacation plans and summer activities so that the child’s location is known in the event of an emergency. It’s always a good idea to also notify the other parent if vacation plans change. Keep in mind that when a parent refuses to disclose vacation plans to the other parent, both parents might end up in court. Unless there is a compelling reason not to, a judge will most likely order the parent to divulge vacation plans for safety reasons. This will cost time, money, and stress which could easily be avoided with open communication.

Be sensitive to your child’s emotions
Summer child custody schedules are often quite a big change from the normal daily routine during the school year. Sometime kids are sent to different cities or states to be with the other parent, which might cause an emotional reaction. It’s important for parents to be sensitive and understanding even when the child expresses that he or she misses the other parent. It’s important to not take the child’s reactions personally and to instead focus on the extra time you get to spend with the child.

Read more about the opinion of children in custody and visitation disputes

Don’t Skip or Tweak Child Support Payments
A change in time-share over the summer months (and likely resulting change in financial situation) does not mean that support payments can be skipped or tweaked. Unilaterally skipping or tweaking a support payment is sure to cause conflict with the other parent. Instead, a child support modification should be properly sought with the courts.Keeping these tips in mind this summer when dealing with child custody arrangements is likely to result in a lot more fun in the sun with your kids!
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You may remember our previous blog highlighting the celebrity divorce of Bethenny Frankel, founder of SkinnyGirl Cocktails, and Jason Hoppy. Well, their bitter divorce battle continues to grab entertainment headlines, which report that the soon to be ex-couple is actually still living together in their five million dollar New York City apartment with their 3-year old daughter, Bryn. As if a divorce isn’t already stressful enough, try living in the same household as your soon- to-be-ex while going through the often long, drawn-out divorce proceedings. Frankel tells PEOPLE, “My living situation is very, very stressful…I don’t think it’s very healthy for anyone involved. It’s very upsetting. You just have to endure it.”

It may seem puzzling why Frankel would continue to endure the stress of sharing an apartment with her soon-to-be-ex when she can clearly afford to move into her own place and not have to face Hoppy on a day-to-day basis. Perhaps her reasoning is related to two main concerns related to moving out of the marital home while the parties are going through the divorce process. The first concern is whether moving out of the home will affect a party’s claim to ownership when assets are being divided down the road. The second concern is whether moving out could adversely affect a party’s standing in his or her battle for primary custody of the child or children.

The martial home is likely a significant asset, if not the most significant asset in many divorces. So it’s reasonable that divorcing spouses would worry that “abandoning” the home would make it more difficult for the one who leaves to make a claim on the property in a divorce settlement. If both claim ownership of the home then would that ownership be jeopardized if one party moves out? As California divorce attorneys know, if the home was acquired during marriage then it remains a marital asset subject to distribution regardless of who remains in the home during the divorce process.

If money is not an issue, then many divorce attorneys often advise clients to physically separate when going through a divorce, which usually means moving out of the marital home. A little distance can often times do a world of good for parties who are going through the divorce process. However, when a party does decide to move out of the marital home, there needs to be some serious discussions about the status of the marital residence. Aspects that need to be addressed include: the care, maintenance and financial obligations regarding the home in the interim, items left in the home, and whether the party left in the martial home will have exclusive use and possession of the home. The parties and their divorce attorneys need to discuss the whether the spouse who remains in the home has an expectation of privacy or if the spouse who moved out will be entitled to some use or enjoyment of the home after moving out.

Another concern regarding moving out of the marital home is with respect to child custody. Since both Frankel and Hoppy want primary custody of their daughter Bryn, they might be concerned that moving out of their NYC apartment could adversely affect their standing in their battle for primary custody. Until a parenting plan is in place, “abandoning” the marital home could indicate that parent’s lack of interest in the child’s daily life if the child remains in the marital home with the other parent. This concern can potentially be resolved by establishing an interim custody schedule which ensures that the parent leaving the marital home will have frequent and continuous access to the child. The parent who moves out could also have his or her divorce attorney argue that the purpose of moving out was to reduce ongoing marital conflict out of concern for the child’s well-being throughout the divorce proceedings.

Nonetheless, many San Diego divorce attorneys will generally advise clients with custody disputes to just stay in the marital home together if possible, like Frankel and Hoppy are doing. First, it helps to avoid creating a potential new status quo regarding the “primary residential parent” where the divorce process is taking an extended period of time. And second, when the parties continue to live together under the same roof emotions tend to get heated. As a result, there may be more incentive to conclude the divorce quicker by negotiating a divorce settlement.

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