Articles Posted in Child Custody and Visitation

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California child custody disputes often center on one parent’s word against the other parent’s word. As the state’s Second District Court of Appeals recently explained, the primary question in any custody case should be:  what’s in the best interest of the child?

tricycleMother and Father were married for more than two years before Father filed for divorce in 2013. They had two children – ages five and three – at the time. Mother explained to the family court hearing the case that the children had been living with her since the couple split a month earlier. She declined to provide the address, asserting that Father had been sexually abusive to her and physically abusive to the children. Father, on the other hand, claimed that Mother wrongly moved with the children to Texas without his permission. He said Mother was lashing out at him because she was fired from her job at a hospital after Father told the hospital he had found vials of drugs that she took from work.

A trial judge eventually held a hearing on the matter, in which both Father and Mother testified and presented witnesses to support their claims. A licensed clinical social worker who interviewed the parents, kids, and other witnesses recommended that Mother be granted full custody of the children. The social worker said Father was “manipulative.” Although the children had a good relationship with both parents, the social worker said the relationship was stronger with Mother. The social worker also said Mother moved the kids to Texas because she didn’t understand the law and made a mistake. The judge, however, came to a different conclusion. He found that Mother lied about the abuse allegations as an excuse for running off with the kids. As a result, the judge ordered that the children remain in California and that the parents continue to share custody.

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Sometimes it’s not just the parents involved in child custody and visitation disputes after a divorce. California’s Fifth District Court of Appeals recently considered a grandparent’s request for a court order giving her the right to visit with her grandchildren. As the court explained, state law generally presumes that the decision should be left to the parent with custody of the kids.

tricycleMother and Father were married for nearly seven years before they separated in 2014 and later divorced. They had two children – ages four and six at the time of the split – and Mother also had a 14-year-old daughter from a previous marriage. The couple separated shortly before Husband was charged with molesting the oldest daughter, a crime for which he was convicted and sentenced to eight years in prison. A trial judge gave Wife sole custody of the children and didn’t allow Husband visitation.

About a month after the divorce was finalized, Father’s mother (Grandmother) asked the court to grant she and her husband (Grandfather) visitation time with the kids. She said Wife hadn’t allowed them to see the children after she found out about the molestation. The court – after a hearing – denied the request to order visitation, instead leaving it up to Mother to decide whether Grandparents would see the kids. The court explained that there’s a presumption against court-ordered grandparent visitation in cases in which the parent with sole custody opposes it. In this case, Wife said she didn’t want Grandparents around the children because they had continued to support Father after he was charged with the crime.

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California courts look at a number of factors when faced with child custody questions related to one parent’s decision to move. As the state’s First District Court of Appeals recently explained, one of those factors is the kids’ ties to their existing, local community. That includes their participation in extracurricular activities.

baseballMother and Father had two children before they divorced in 2012. A court initially ordered them to share custody of the kids. Father went back to court three years later, however, claiming that Mother was refusing to take the kids to little league and other after-school activities. Mother moved from Fairfield to San Francisco while that request was pending. She separately asked the court for permission to have the children throughout the week. She accused Father of abusing the children and said his animosity toward her had gotten in the way of the kids’ best interests.

Following a hearing on the matters, the trial court granted Father full custody of the children and offered Mother weekend visitation twice a month. The trial judge said Mother moved to San Francisco with the children without adequately discussing the situation with Father. It noted that the 50-mile commute to and from their school in Fairfield was detrimental to the kids and said Father was more supportive of their involvement in the local community, including through extracurricular activities.

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If you don’t like a ruling from a trial court in a divorce case, you have the right to appeal. The problem, however, is that appeals courts take a fairly deferential stance in those cases. As the Fourth District Court of Appeals recently explained, appeals courts review trial judge decisions for an “abuse of discretion.” In other words, a judge must generally have abused the fairly broad discretion he or she is afforded in order for a decision to be overturned. That makes it vital that a person considering a divorce seek the advice and counsel of an experienced attorney as soon as possible in the process in order to put a strong case before a trial judge.child

Husband and Wife were married for some nine years and had two children before separating in 2009. The couple agreed to share joint legal and physical custody of the kids and split expenses. A court eventually issued a divorce judgment encompassing that agreement. That set off what appeared to be a series of disputes between the former spouses about how to parent the kids.

Additional litigation ensued, and Wife eventually asked for greater visitation rights, child support, and spousal support. In response, Husband asked a court to give him sole physical custody of the children. He argued that Wife wasn’t using all of her visitation time with the kids and said she had violated the terms of the divorce judgment by proposing to change their daughter’s therapist without consulting him. He also said that the switch to full custody would be in the children’s best interests. The trial court disagreed and ordered the spouses to continue with joint custody. It also made Husband’s home the primary physical residence for the kids.

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Marijuana is now legal in California for both medicinal and recreational use. But, as the state’s Fourth District Court of Appeals recently explained, that doesn’t mean pot is off limits for courts considering child custody cases.

Mother and Father divorced in 2012, following some 17 years of marriage in which they had four children. “The couple enjoyed a lavish lifestyle during their marriage,” according to the Fourth District, thanks largely to investment income of more than $1 million per year. Mother moved to California with the three youngest kids after separating from Father. He and the oldest child later also moved west.child

A trial judge wasn’t pleased with either parent when it came time to determine custody. The judge found that both Mother and Father “lied about important facts” and appeared more concerned about their own needs than those of the children. Although Father appeared to be more involved than Mother in the kids’ lives, the court found that the children were not his first priority. It said Father “involved the children in a destructive loyalty contest by constantly bad-mouthing Mother and referring to her by derogatory terms.” Mother, on the other hand, appeared to relegate most of her child-rearing duties to her employees. The court said she was “not able to put the children’s needs ahead of her personal and social life.”

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There are often a number of difficult issues that come up when a couple with kids decides to divorce. Those issues are magnified in situations in which the parents wind up living in different towns. As a recent case out of California’s Third District Court of Appeals shows, these cases can come down to very close calls about what’s in the best interests for the children involved.

alphablocksMother and Father separated in November 2009, following a nearly 12-year marriage in which the couple had one son. Father sought sole legal and physical custody of the one-year-old boy, and he asked that the trial court allow Mother only supervised visits with the boy. Mother had recently been arrested and charged with striking Father’s 80-year-old mother, according to the court, and Father alleged that she’d previously attempted to commit suicide in front of the boy. He also claimed that she allowed the child to play with sharp objects and generally lacked the parenting skills to properly care for him without supervision. Nevertheless, the trial court agreed to Mother’s request for joint physical custody. It also awarded the parents joint legal custody.

Mother returned to court about three years later, this time requesting sole legal and physical custody of the child. She was living in Quincy at the time, and she said she wanted Son to be able to start kindergarten there the next year. Father had since moved to Reno, Nevada, for work. Mother said Son, who was living with her 3.5 days a week, had already been involved in a Head Start program there, played soccer, and attended weekly reading classes. She said she wasn’t aware of Son being involved in any programs in Reno nor of his making any friends there. Father acknowledged that he had not enrolled Son in any preschool or other activities, but he said he was reading to the boy and getting him involved in various activities.

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Child custody disputes can raise a number of contentious and complicated legal issues when both parents live in the same area. When one parent seeks to move away and take the child with them, it raises a slew of other questions. As a recent ruling out of California’s First District Court of Appeals makes clear, judges ultimately decide whether to grant a move-away request based on the child’s best interests.

usa-map-1172863Father and Mother separated in August 2009, sparking what would turn into a pitched battle over the custody of their then nine-year-old daughter. Mother obtained a two-year domestic violence restraining order against Father, based on an incident in which he allegedly grabbed her, twisted her arms, and poked her in the chest. Husband was also ordered to complete a 52-week batterer’s treatment program. As part of the restraining order ruling, a trial judge also awarded Mother full custody of Daughter. The judge allowed Father six hours of visitation time per week, a share that increased over the following years until Daughter was spending about 25 percent of her time with Father each week.

Mother filed for divorce in 2010 and soon thereafter asked the court for permission to move with Daughter to New Jersey. Presuming that Mother would move with or without the child, the court concluded that it was in Daughter’s best interest to go with Mother. It found that Mother was the child’s “primary caregiver and attachment figure.” The court also found that Mother wasn’t trying to sever the relationship between Father and Daughter by requesting the move. She grew up in New Jersey, had family there, and wanted the support in helping to care for the child.

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Allegations of domestic violence are serious matters that can have a significant impact on the outcome of a child custody case. A recent case out of California’s First District Court of Appeals shows how judges handle custody matters when both parents are alleged to have committed domestic violence.

gavel-4-1409594-mHusband filed for divorce from Wife in June 2010, bringing to an end an eight-year marriage. “The parties agree their marriage was characterized by ongoing conflict, although they largely blame each other,” the Court later said. Husband had been briefly arrested earlier in the month, following an argument in which he “swatted” Wife on the buttocks with a wooden clothes hanger. Although the incident left a bruise, Wife declined to press charges against Husband. She did, however, obtain a temporary restraining order from him and was awarded sole legal and physical custody over the couple’s two kids pending a hearing in their divorce case.

After a couple rounds of hearings, Wife retained primary legal and physical custody over the kids. Husband was given visitation rights two nights a week and on alternating weekends. He later sought joint custody. A psychologist appointed by the trial court to perform a custody evaluation agreed that the custody should be shared equally between the former spouses. In addition to the doctor’s report, the court also relied on testimony from witnesses and a video presented by Husband that allegedly showed her committing domestic violence. The court called Wife’s behavior “aggressive, threatening, harassing, angry, belittling, raging, provocative, and intimidating.”

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A recent ruling out of California’s Third District Court of Appeals is a source of some good advice for any parent who wants more visitation time with or custody of their kids:  show up for the visits you have already.

playground-1435367-mThe El Dorado County Sheriff’s Department arrested Mother and Father in January 2013, following an incident in which Mother allegedly assaulted Father and Father brandished a firearm. The couple’s two children were placed in protective custody. Workers for the County Department of Health and Human Services reported that the home was dirty and cluttered with items that Mother had hoarded, leaving the children without a useable bedroom. The children were dirty, according to the workers, and their hair was matted and their feet covered with dry dirt.

The cops, meanwhile, said the home contained rat feces and a strong odor. They also said that 30 Oxycodone pills were missing from a prescription obtained just four days earlier and that the children had easy access to both medication and marijuana being grown in the home. They further noted that a rifle was improperly stored within reach of the kids. A judge ordered that the children be detained and placed in a temporary foster home. The judge also allowed each parent to have limited, supervised visitation with the kids. Husband filed for divorce from Wife roughly one week later.

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Child abuse is a serious matter that can weigh heavily in a California divorce case. Courts usually look into molestation and other abuse allegations in a thorough and exacting manner, calling on mental health evaluators and other experts when necessary to determine the facts of the matter. As a recent decision from the state’s Sixth District Court of Appeals shows, a spouse who falsely accuses the other of child abuse is likely putting his or her child custody and visitation rights at risk.

alphablocksHusband filed for divorce from Wife in 2011, following roughly 18 years of marriage. A court dissolved the marriage approximately two years later and awarded the spouses joint custody of their only child. Wife later sought full custody of the then eight-year-old boy, however, alleging that Husband had molested the child. She was initially awarded sole custody – with no visitation for Husband – after reporting the matter to the local police.

A court-appointed mental health evaluator later found that, although it was not possible to rule out that Son may have been abused by his father or another person, he found no reason to believe that Husband had abused the child. The evaluator also said he was concerned that Wife had influenced the child’s belief that he was abused. The evaluator recommended that Husband be given temporary legal and physical custody of the child, while Wife be allowed supervised visits every other day. Wife and Son underwent therapy sessions, based on the evaluator’s recommendation, and later returned to court so that a long-term custody and visitation plan could be reached.

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