Articles Posted in Custody and Visitation

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1. What is FCS Mediation?

Family Court Services (FCS) provides child custody recommended counseling in family law cases when separating or divorcing parents cannot agree on a child custody sharing plan. Child custody recommended counseling is provided in a private counseling office with a trained court counselor. The FCS conference allows both parents to work together toward a mutually acceptable agreement which is in the best interest of their children. The court counselor will evaluate the case and make a recommendation to the Judge regarding child custody and visitation if the parents are unable to reach an agreement.

2. Is mediation required?

In any dissolution matter regarding child custody and visitation where there is a dispute, Family Code section §3170 mandates that the case be set for child custody recommending counseling prior to the court hearing. Mediation has been required in California for divorcing parents regarding child custody and visitation since 1981.

3. What topics will be discussed in Mediation?

The main topic is child custody and visitation. This includes legal custody and physical custody arrangements. In making a parenting plan, topics such as birthdays, holidays, and summer vacation can be determined by a visitation schedule agreed upon by the parents. Topics such as child support, spousal support, and property division are not usually addressed but agreements can be drafted through your attorney if decided upon mutually by the parents.
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We have previously blogged about the impact military orders can have on a San Diego parent in a child custody case. Recently, the House Armed Services Committee is considering ways to enhance the provisions in place that protect the parental rights of service members. The Servicemember Family Protection Act is designed to preclude family court judges from ruling against servicemembers based solely on a history of or future deployment in child custody cases. Originally introduced in 2008, the bill has passed the House of Representatives with support from both the Democratic and Republican parties but has repeatedly failed in the Senate. The Defense Department has rejected this bill in favor of passing similar legislation at the state court level.

Often in California child custody cases the family court judge will scrutinize a parent’s absence from the child’s life. However, servicemembers may be deployed for extended periods of time and have little to no contact with their children. The Servicemember Family Protection Act is intended to excuse a parental absence due to military orders. It is important to note that the bill will not give servicemembers any advantage in child custody cases or hearings, it will only function to remove the disadvantages servicemembers are facing in these proceedings.

Traditionally, deployment has been understood as the movement of military forces from one area to another or sending military personnel into a combat zone. The Servicemember Family Protection Act defines deployment much more broadly for the purposes of child custody proceedings. For the purposes of the bill, deployment would include humanitarian operations and unaccompanied oversee tours as well. The bill has been proposed as an amendment to the Servicemembers Civil Relief Act. The Servicemembers Civil Relief Act was passed as a federal law, which granted special rights to servicemembers who were part of a civil proceeding. In 2008, Congress extended these privileges of the Civil Relief Act to child custody cases. The bill now prevents family courts from making permanent changes to custody orders while a servicemember parent is deployed.

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As mentioned last week, statistics show that approximately 50% of marriages will end in divorce. Now that divorce is so prevalent in today’s society, we need to find effective ways to minimize the negative effects on children and maximize family support and encouragement through this tough time. Listed below are three proposed solutions that you as a parent can do to help reduce the negative effects divorce may have on your children. Not one solution by itself will eliminate the problem, but a combination of them may significantly decrease the negative effects divorce has on children. These solutions include: divorce education and co-parenting classes, divorce mediation, and family counseling. Also your attorney can engage in collaborative practice of law to further assist in making the divorce process easier on children.

Education Programs

A recent study indicates that 46 states currently offer some version of a parent education program. Some jurisdictions also offer classes for children coping with their parents divorce and a few jurisdictions offer parallel classes for both parents and children. For example, in San Diego, there is a program for children called KidsTurn. Some of these programs are court mandated or recommended by the judge, while others are voluntary. These classes can last anywhere from a few hours in one day up to eight weeks. Many of these programs reported positive findings such that parents either reported decreased interparental conflict or decreased re-litigation.

These education programs aim to do the following: 1) inform parents how children usually respond to divorce; 2) alert parents to the negative effect of conflict and their harmful behaviors on children’s adjustment both in the short and long term; 3) discuss benefits of, and skills needed, to build a cooperative or parallel parenting relationship; 4) focus parents on the needs of children for an on-going relationship with each parent; 5) teach positive parenting behaviors and appropriate discipline; 6) discuss the process of adult adjustment to divorce and how to cope with this change; 7) focus on responsibilities of each parent to the children; and 8) describe helpful court processes, such as mediation. This can completely change a person’s parenting style and their relationship with their ex spouse and their children.

Co-parenting Classes

Cooperation between parents after divorce includes frequent communication about the child, coordination of routines across households, the ability to resolve differences in a mutually satisfactory manner, and respect for and support of the other parent’s relation with the child. In order to accomplish these things without conflict, it is useful for parents to attend co-parenting classes together. These may be court mandated by the judge or taken voluntarily by the parents.

Co-Parenting has been used in a variety of ways to refer to the degree to which the ex-spouses share the parenting role. These include: joint problem solving skills and joint decision making concerning the child’s welfare, low levels of conflict around parenting issues, building communication and trust, and also sharing in joint responsibilities. Programs have reported positive findings such as decreased inter-parental conflict, increased encouragement with other parent’s involvement, trust for the other parent’s ability to parent the child, and decreased re-litigation. About 80% of judges report that these classes helped parents agree on custody arrangements before coming to court and decreased re-litigation of those who had already been in court.
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San Diego is known for having a vast military community. Among the many military bases in San Diego County are the Marine Corps Air Station Miramar, the Marine Corps Base Camp Pendleton, the Naval Base Coronado, the Naval Base San Diego, and the Naval Base Point Loma. In fact, the Naval Base San Diego is the largest base of the United States Navy on the west coast. Having a parent in the military can bring out a new set of child custody and visitation complications. It is important to consider possible deployments when creating any parenting plan.California Family Code section 3047 directly addresses a parent’s military obligations, “a party’s absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party’s activation to military duty…or military deployment out of state.” Under this statute, one parent may not use the other’s military duties against them in a child custody proceeding. If the sole or joint physical custodian is required to move a substantial distance or is otherwise unable to exercise his or her custodial rights, the court may order a temporary modification in custody. Once the military parent is able to resume his or her custodial duties, the temporary order is subject to review. However, there shall be a presumption that the previous order will resume in place of the temporary modification. This presumption can be overcome if the court finds it is not the best interest of the child.

The best interest of the child is the controlling theme throughout San Diego family law. The court considers a number of factors and makes determinations of custody and visitation. Among the factors the court will consider are:

(1) The health safety and welfare of the child;

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Nearly one million children are affected by divorce each year. Parents and families struggle to help children who are experiencing negative effects after their parent’s divorce. Psychological and sociological research is widespread with evidence of the detrimental effects that divorce can have upon children after separation. Research has shown that, on average, children from divorcing families more frequently experience behavioral and adjustment difficulties during later childhood, adolescence, and even into adulthood. Children have been shown to exhibit a wide variety of responses to divorce and other family changes; frequently these responses include anger, a sense of loss, betrayal, shame, embarrassment, depression, loyalty conflicts, and guilt.

With about half of all marriages ending in divorce, many children may experience a difficult time adjusting. Studies show that the detrimental effects that parents’ divorces may have on their children include: depression, aggression, anti-social and/or self destructive behavior and diminished academic performance. Researchers have identified three factors as the most important predicators of negative effects on children of divorce: 1) instability in the child’s life, 2) the absence of effective parenting, and 3) interparental conflict.

Instability

Divorce can be extremely emotional for everyone involved; however, it is important to maintain stability in a child’s life. The more stable you can keep the child’s life, the better adjusted they will be after their parents get divorced. Stability means maintaining regular contact with the other parent by getting child custody and visitation orders in place. You also want to surround yourself with relatives and friends during this hard time. Stability also means following a familiar day to day routine with the child. This is often challenging because the routine is going to change for the child after the parent’s get divorced. A minimum number of transitions after divorce are the most beneficial for the children. If possible, keeping the children in the same school, home or neighborhood, always helps the child relate to some stability. Instability can leave a child feeling confused, alone, and at fault for the divorce.

Ineffective parenting

Parents who are unaware of the effects divorce can have on children or have had on their particular child cannot help them through it. Some parents may not know how to help their children cope or even ways to deal with the divorce themselves. Others may be unaware of resources in their community such as parenting classes and family counseling. It is important for parents to get educated about the effects divorce may have on children and get help for themselves if need be. That way the parents are equip to help a child who is experiencing a difficult time, because ineffective parenting can leave children feeling lonely, hurt, and unloved.
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Under California family law statutes, paternity can be established in a number of ways depending on the relationship between the father and mother. Through the combination of statute-mandated presumptions and DNA testing, determinations regarding paternity made by the court can have a significant impact on child custody and child support.

An unmarried father must sign a paternity declaration in order for his name to appear on a child’s birth certificate. The paternity declaration is significant because it creates both support obligations and parental rights for the father. In San Diego, there is a rebuttable presumption that a man who accepts a child into his home and openly holds that child out to be his own is the child’s biological father. This presumption is rebuttable through the use of blood tests to determine paternity. If no blood tests are conducted and introduced into paternity proceedings, the man is presumed to be the child’s father.

A child conceived during a martial relationship in which the wife is cohabitating with the husband is presumed to be a child of the marriage. In other words, the mother’s husband is presumptively the child’s father. If the husband is sterile or impotent, the marital presumption will not apply. This presumption may be overcome through the use of blood or DNA testing to determine paternity. The presumed father must petition for court-ordered blood testing within two years of the child’s birth. Therefore, unless a motion is filed within the two-year statute of limitations and blood testing establishes the husband is not the father, the mother’s husband is conclusively presumed to be the father. The presumption will still apply even if another man is proven to be the biological father of the child.

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Recently, in Corpus Christi, Texas two grandmothers were awarded custody of their one-year-old granddaughter, Gabby. The child’s mother, Victoria Valdez, was only 16-years-old when she tragically died from severe head injuries caused by a car accident on New Year’s Day. The child’s 18-year-old father, Gabriel Padron, was driving the car when the accident occurred and is suspected of driving under the influence of alcohol. Although he admits to drinking prior to the crash, he denies being drunk while driving his vehicle. No arrest has been made and charges have yet to be filed; however, he has been accused of intoxication manslaughter. Toxicology results are still pending.During the custody case, Gabby’s aunt testified that Padron was a dangerous domestic violence perpetrator and was unsafe for Gabby to be around. Valdez’s sister further testified that the victim refused to leave Padron out of fear. During the trial, witnesses testified about both grandparents’ role in Gabby’s life prior to the accident and what accommodations Gabby would have in their custody. These witnesses described the baby’s room, clothes, crib, and toys in each home. As part of a temporary custody agreement, the paternal and maternal grandmothers will share custody and Gabby will continue to reside with her paternal grandmother who cared for her immediately following the accident. Gabby’s father was only given weekend visitation.

In San Diego, generally, following the death of a custodial parent, the surviving parent is entitled to sole legal custody. However, other relatives such as aunts, uncles, or grandparents may fight to obtain custody of the child. These relatives may file a guardianship or dependency action, or in the case of grandparents, a motion for grandparent visitation. If the relatives are successful in showing it is not in the child’s best interest to remain with the surviving parent, they may be awarded custody. In the Texas case, family members testified about the father’s violent behavior and suspected drunk driving and eventually were granted temporary custody of the minor child.

Under California Family Code section 3104, a grandparent of a minor child may petition the court for visitation rights. The court may grant reasonable visitation if the court does the following: (1) finds that a grandparent-grandchild relationship existed prior to the action and that it is in the best interest of the child to visit with the grandparent, and (2) carefully balances the parent’s right to exercise his or her authority and deny visitation against the interest of the child in having visitation with the grandparent. It is important to note that this type of petition may not be filed while the grandchild’s parents are married unless one or more of the following exceptions apply:

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After a long and embarrassingly public divorce, Beverly Hills Housewife Camille and Broadway star Kelsey Grammer reportedly end their custody battle. The couple shares two children: Jude, 7 years old, and Mason, 10 years old. It seems that Camille will have physical custody of the children since their primary residence will be with her. Kelsey will reportedly have “meaningful contact” with the children. After a 13-year marriage it appears both stars have moved on. Kelsey remarried within two weeks of finalizing his divorce. He and his new wife are expecting twins. According to Camille’s statements on her show the “Real Housewives of Beverly Hills” , she is also happily in a relationship with lawyer Dimitri Charalambopoulos.

Camille filed for divorce on July 1, 2010 after learning of Kelsey’s affair with a stewardess, Kayte Walsh. Kelsey was able to marry his new wife Kayte Walsh before settling all aspects of his divorce with Camille through the bifurcation process. In order to accomplish this, Kelsey asked the judge to grant a divorce decree while suspending the division of the large and complex marital estate. The estate is estimated to be worth $120 million dollars and because the couple did not have a prenuptial agreement, Camille demanded $50 million.

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We have blogged several times about the potential problems that Facebook and other social media sites can have on a divorce. The same potential for problems also applies to the text messages you send. Although it is sometimes difficult to get text messages into evidence (meaning properly in front of a judge), once the text message is in evidence, it could change the outcome of your case!Unlike Facebook and other social media posts, text messages cannot be deleted or recalled. Any text that you send to your spouse, or even to a third party, can end up being used against you in a divorce. With phones now having up to 64 gigabytes of storage, or more, texts from many years ago could end up being presented as evidence to the judge in your divorce case.

• If you threaten to harm your spouse in a text, that may be the basis for a restraining order, or even criminal prosecution.

• If you call your spouse names in texts, the judge could end up with an unfavorable opinion of you.

• If you say one thing in your declaration (such as, “I do not use drugs”) and text something contrary to your spouse or a third party (such as, “I can’t believe how stoned I was at the party”), you will ruin your credibility with the judge.

In a recent story on NPR, Ken Altshuler, president of the American Academy of Matrimonial Lawyers, provided the following tips for keeping your texts out of court, upon which I elaborate:

• Do not text your spouse anything that you would not want a judge to see. This also applies to Facebook and other social media posts, messages or comments, emails, and even voice mail messages. It is always best to assume that any text, anything you write or any voice message you leave for your spouse will end up in front of your judge. Some examples of what not to post, blog or text about can be found here.

• If your spouse or former spouse sends you an inappropriate text, do not respond in kind because a judge will see that. The judge usually does not care who started an inappropriate exchange because the exchange is usually just a small part of the bigger picture. In one of my cases after reviewing hateful emails back and forth between the parties, the judge (slightly misquoting Mercutio’s famous line from Shakespeare’s Romeo and Julie), said “A pox on both your houses.” When the other party blurted out, “She started it!” the judge replied, “Sir, two wrongs do not make a right – and your emails back to here were totally inappropriate, no matter who started it.”

• Do not send messages that set your spouse up for an inappropriate or angry response. On the other hand, some Judges will look into who started it. You do not want your judge to find that you were the party that started it, or someone who is baiting the other side. This could ruin your credibility with the judge for the rest of your case.

• If you are worked up and want to send your spouse a message, take time to calm down before putting anything in writing. Again, if it is in writing, you must assume that your judge will eventually read it. If you are unsure about a written response to your spouse, send it to your attorney for review before sending it to your spouse.

Always remember, do not text anything to anyone that you would want the family law judge in your case to see or read.
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It is surprising to think that, in California, a parent can be arrested and criminally prosecuted for kidnapping his or her own child. This surprising truth became all too real for a Twin Falls woman who was charged with custodial interference in Idaho. In the recent case, Stefanie Contreras pleaded guilty to abducting her own 4-year-old son. Contreras entered the father’s home with three others intending to take her son from father’s custody. To follow up with Contreras’ case, stay tuned for her sentencing hearing, which is scheduled to occur on March 26, 2012. Few San Diego residents are aware that they can be found guilty of abduction for moving their own children outside of California. If you are considering taking your child outside of San Diego or California it is important to consult the other parent involved.

There are many misconceptions about what is required to charge an individual with kidnapping. A stranger to the child is not necessarily the only person who can kidnap a child. If a parent disobeys a custody or visitation arrangement he or she may be arrested for kidnapping. Whether the parent has sole legal custody, meaning the exclusive right to made decisions regarding the child’s health, safety, or wellbeing, is irrelevant. Under California law, if the parent takes, entices away, keeps, withholds, or conceals his or her own child intending to deprive the other parent of his or her lawful visitation or custodial rights, he or she can be prosecuted for kidnapping. It is important to note that a parent can be charged with kidnapping regardless of whether there is a formal court order regarding custody and visitation.

Although child custody and visitation orders originate in the family court system, kidnapping is a criminal charge and may result in a criminal record and/or incarceration. For example, under California Penal Code section 278, any person found guilty of kidnapping shall be punished by imprisonment in a county jail for up to a year, a fine not exceeding $1,000 or both. Sentences and fines may vary depending on whether the parent is prosecuted for a felony or misdemeanor.
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