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:

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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In a previous San Diego Divorce Attorney blog post, I discussed the factors the court looks at when a party is requesting to move with the children.In two recent San Diego divorce cases, the court of appeal determined that the trial court misapplied the applicable legal standard when denying move away requests.

In both Mark T. v. Jamie Z. and F.T. v. L.J., the trial court was reversed for failing to assume that the move by the parent requesting the move will take place, and then under those circumstances, make a decision about with whom and under what circumstances the child should live. Instead, in both cases, the court denied the move-away and made its orders on the assumption that if the move was denied, the custodial parent would not move.

In Mark T. v. Jamie Z., Mother who had primary physical custody of Child, requested to move to Minnesota with the Child because she was unemployed and could not find work in San Diego, despite receiving child support and emergency state aid she was borrowing money from relatives to make ends meet, and she had family in Minnesota with whom she could live and provide child care assistance, the cost of living was lower and she planned to return to school part-time and had an internship in Minnesota. Although the FCS mediator recommended that Mother be allowed to move, the child psychologist believed the move should not be permitted because it was in the Child’s best interest not to remove him from a loving and capable Father. The psychologist’s recommendation assumed Mother would remain the primary care-taker with Father’s time increasing from 30% to 50% when the Child turned 5 years old. The court denied the move-away and adopted the psychologist’s recommendations, assuming that if the move-away was denied, that Mother would remain in San Diego with the child. The court of appeal reversed holding that the court misapplied the legal standard and avoided the ultimate question – what custody arrangement would be in the Child’s best interests, assuming Mother moved. The court also did not base its decision on all of the move-away factors and the one’s that were used, such as finding the move “suspect”, were without a basis for the findings.

In F.T. v. L.J., Father, who had primary custody of Child, requested to move Washington state with the Child because he was marrying a Washington state resident. Father originally obtained primary custody after Mother abused the Child, and Mother was convicted for battery against the Child. Mother had supervised visitation, which was later modified to unsupervised visitation. Both FCS and the psychologist recommended against the move. FCS proposed alternative child sharing schedules depending on whether Father remained in San Diego or moved. The court denied the move-away, finding that the move was not in the Child’s best interest and made an order assuming that Father would remain in San Diego. The Court of Appeal reversed holding that the court misapplied the legal standard, did not treat the Father’s plan to move as serious, erroneously required Father to show the move was necessary, only considered impact on Child’s relationship with Mother instead of all the move-away factors and failed to apply Family Code Section 3044’s rebuttable presumption that Mother should not be awarded custody because of her criminal conviction for battery of the Child.

The court must apply all of the move-away factors, including:
• Reason for the move;
• Whether the move is to frustrate the other parent’s contact;
• The child’s interest in stability and continuity;
• Distance of the move;
• Age of the children;
• Child’s relationship with both parents;
• Current child sharing.
• Child’s Existing contact with both parents;
• The relationship between the parents;
• The wishes of the children if mature enough;
• Child’s community ties;
• Child’s health and educational needs;
• Child’s circle of friends; and • Child’s sports/academic activities.
and make orders based on the assumption that the party requesting the move will move regardless of the court’s decision. The court can also make conditional orders, stating what the parenting plan will be effective upon the party actually making the move.
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