A. Statutory Definitions
1. Custody and Visitation in Divorce and Paternity Proceedings
(a) “‘Joint custody’ means joint physical custody and joint legal custody.” Cal. Fam. Code § 3002.
(b) “‘Sole physical custody’ means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.” Cal. Fam. Code § 3007.
(c) “‘Joint physical custody’ means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Family Code § 3011 and Family Code § 3020” (Cal. Fam. Code §3004). A parent who is entitled to physical custody can nevertheless be found guilty of kidnaping that child if s/he exercises custodial rights for an illegal purpose. See People v. Senior 3 Cal. App. 4th 765, 5 Cal. Rptr. 2d 14 (1992). Father who took minor daughter to motel room to molest her properly convicted of kidnaping
(d) “‘Sole legal custody’ means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” Cal. Fam. Code § 3006.
(e) “‘Joint legal custody’ means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” (Cal. Fam. Code § 3003.) In re Crystal K., 226 Cal. App. 3d 655, 668, 276 Cal. Rptr. 619 (1990), defined “legal custody” as “a wide-ranging concept encompassing a variety of parenting arrangements.”
(f) California Family Code § 3004 requires the court to consider any history of child or spousal abuse or the habitual use of drugs or alcohol when making joint physical custody orders. The Court may make visitation order as part of joint custody order pursuant to Cal. Fam. Code § 3100, which states: “(a) In making an order pursuant to Chapter 4 (commencing with [Cal. Fam. Code § 3080 (for joint custody)]), the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child….” Cal. Fam. Code § 3100(a).
(g) Every other weekend and one night per week does not amount to “joint physical custody” for purposes of “move away” cases. In re Marriage of Biallas, 65 Cal. App. 4th 755, 76 Cal. Rptr. 2d 717 (1998). “Joint physical custody exists where the child spends significant time with both parents.” (Id. at 760.) Every other weekend and one night per week amounted to nothing more than F’s having “liberal visitation rights.” Circumstances under which joint parental consent is required need not be stated when joint custody order is denied. In re Marriage of Buser 190 Cal. App. 3d 639, 235 Cal. Rptr. 785 (1987).
(h) There is no statutory preference or presumption for or against joint or sole custody. Cal. Fam. Code § 3040 (b), which states: “This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.”
(i) A preconceived bias of trial court against joint custody requires reversal. In re Marriage of Schwartz, 104 Cal. App. 3d 92, 163 Cal. Rptr. 408 (1980)
(j) Serious parental strife and inability to cooperate for benefit of children are reasons to deny joint legal custody. In re Marriage of McLoren 202 Cal. App. 3d 108, 247 Cal. Rptr. 897 (1988).
(k) Joint legal custody order absent parental agreement not error despite parental acrimony. In re Marriage of Wood 141 Cal. App. 3d 671, 190 Cal. Rptr. 469 (1983).
2. Domestic Abuse Proceedings
The Domestic Violence Prevention Act (DVPA) can be found at 6200 through 6390 of the Family Code.
Domestic Abuse is defined as abuse perpetrated against:
(a) A spouse;
(b) A cohabitant or former cohabitant (which is defined as a person who regularly resides(resided) at the residence);
(c) A person with whom the respondent is having or has had a dating or engagement relationship;
(d) A person with whom the person has had a child where the party is presumed to be the father;
(e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected;
(f) Any other person related by consanguinity or affinity within the second degree.
A party may request an order for custody or visitation under the DVPA. Any such order is subject to Part 2 of Division of the Family Code dealing with the right to custody of a minor child. See Cal. Fam. Code § 3020 et seq.
A party to a DVPA may obtain an ex parte Emergency Protective Order where a law enforcement officer asserts reasonable grounds to believe any of the following:
(a) That a person is in immediate and present danger of domestic violence, based on the person’s allegation of a recent incident of abuse or threat of abuse by the person against whom the order is sought.
(b) That a child is in immediate and present danger of abuse by a family or household member, based on an allegation of a recent incident of abuse or threat of abuse by the family or household member.
(c) That a child is in immediate and present danger of being abducted by a parent or relative, based on a reasonable belief that a person has an intent to abduct the child or flee with the child from the jurisdiction or based on an allegation of a recent threat to abduct the child or flee with the child from the jurisdiction.
Cal. Fam. Code § 6250.
The Court must find both of the following to issue an emergency protective order:
(a) That reasonable grounds have been asserted to believe that an immediate and present danger of domestic violence exists or that a child is in immediate and present danger of abuse or abduction, and
(b) That an emergency protective order is necessary to prevent the occurrence or reoccurrence of domestic violence, child abuse, or child abduction. Cal. Fam. Code § 6251.
An Emergency Protective Order may include an order determining the temporary care and control of any minor child of the endangered person and the person against whom the order is sought. It may also include an order determining the temporary care and control of any minor child who is in danger of being abducted. Cal. Fam. Code § 6252.
Emergency Protective Orders expire automatically on the earliest of the following: close of judicial business on the fifth court day following the day of issuance, or the seventh calendar day following the day of its issuance. Cal. Fam. Code § 6256
Thus, after an Emergency Protective Order has been issued, the party must go to court and obtain an ex parte order. The party can also proceed directly to obtaining an Ex Parte Order without first obtaining and EMPO.
Unlike the limitations regarding ex parte custody orders in a family law proceeding, the court in a DVPA proceeding can grant sole legal and physical custody on an ex parte basis. Cal. Fam. Code § 6323.
If the violent party has not established that he/she is a parent, then the court, in the determination of the best interests of the child and in order to limit the child’s exposure to potential domestic violence and to ensure the safety of all family members, can award the party proving a parent child relationship sole legal and physical custody with an order of no visitation to the other party pending establishment of a parent child relationship.
When making an order for custody the court must specify the time, day, place, and manner of transfer of the child for custody or visitation to limit the child’s exposure to potential domestic conflict or violence and to ensure the safety of all family members. Cal. Fam. Code § 6323(c). The court may also consider whether visitation should be limited to situations in which a third person, specified by the court, is present, or whether visitation or custody should be suspended or denied.. Cal. Fam. Code § 6323(d).
The party may obtain ex parte for orders that include restraints against domestic violence, orders removing and excluding a party from a residence. Cal. Fam. Code § 6321
The ex parte matter is then set for hearing, wherein in the court will issue permanent orders for custody. Unlike the actual restraining orders, which are only valid for three years, custody orders are governed by the law relating to those specific subjects. Cal. Fam. Code § 6345(b).
Allegations of domestic violence are very serious with connection to custody and visitation orders. One of only four factors listed to be considered by the court in determining best interests of the child, in any proceeding, is whether there is any history of abuse by one parent or any other person seeking custody a child to whom the party is related or had a caretaking relationship, the other parent, a parent, current spouse or cohabitant of the parent seeking custody, or whom the parent has a dating or engagement relationship. Cal. Fam. Code § 3011.
The Court is further encouraged to structure a visitation order that would not interfere or be inconsistent with an emergency protective order, protective order, or other restraining order. Cal. Fam. Code § 3031.
In any action, whether in a dissolution, paternity action or DPVA, where there is domestic violence, the court must specify the time, day, place, and manner of transfer of the child for custody or visitation to limit the child’s exposure to potential domestic conflict or violence and to ensure the safety of all family members. The court may also limit visitation to situations in which a third person, specified by the court, is present, or whether visitation or custody should be suspended or denied. Cal. Fam. Code § 6323(d).
If the court does grant visitation or custody to a person who has been accused of domestic violence (or substance abuse) the court must state its reasons for doing so. Cal. Fam. Code § 3011.
3. Harassment Proceedings
A person may seek a temporary restraining order and a permanent injunction to prevent another person from harassing them. Cal. Civ. Pro. § 527.6(a). Harassment is defined as unlawful violence, a credible threat of violence, of a knowing and wilful course of conduct, directed at a specific person that “seriously alarms, annoys, or harasses” and serves no legitimate purpose.
This section does not forbid a spouse from obtaining an order enjoining the other spouse from harassing, however, this section is specifically inapplicable to (1) actions for dissolution, nullity, or legal separation; (2) actions to secure future child-support payments; (3) proceedings under the Domestic Violence Prevention Act; and (4) the Uniform Parentage Act. Cal. Civ. Pro. § 527.6(k). Thus, a restraining order is the only relief that may be sought.
In dissolution actions, California Family Code § 2045(b) allows orders for enjoining harassment and violence. It also provides for orders removing and excluding a party from a residence.
4. Relocation of a Child, Custodial, or Non-Custodial Parent from the State
The Federal Constitution provides each parent with a constitutional right to travel. Thus, the court cannot order either parent to remain within its jurisdiction. The only issue for the court to consider is who should have custody of the children.
The first decision to be made in evaluating a “move away” request is whether the parties have joint custody of the children wherein the shared custodial plan is close to fifty-fifty.
If the court finds that there is a joint shared custodial plan, then the court must conduct a hearing to determine “de nova” whether the move is in the child’s best interest. Brody v. Kroll, 45 Cal. App. 4th 1732, 53 Cal. Rptr. 2d 280 (1996). In re Marriage of Burgess, 13 Cal.4th 25, 51 Cal. Rptr. 2d 444 (1996). This has become what is commonly referred to as a “Footnote 12” exception to the custodial parents right to automatically move the residence of the children.
If one party is the custodial parent, then that parent does not need to prove that the move is necessary, and custody status quo should be maintained, unless it is shown to be detrimental to the child.
In either case, if you represent the moving party, have the party provide notice, even in the case where the parent is the custodial parent. This notice should be provided well in advance of the move so that you may apply to the court for orders allowing the children to move in the event the other party objects. If you do not receive an agreement to the move, then you must file an Order to Show Cause to modify the current visitation order. Most courts will order some type of custody evaluation to help determine the issue of either detriment to the child if the move is allowed, or best interests of the child in the case of joint custodians. You should also discuss and propose a visitation plan for the other parent with the moving parent. The moving parent should understand that the children will be spending most, if not all, of the vacation and holiday periods with the non-moving parent.
If you represent the non-moving parent you have the following options:
(a) Agree to the move on certain conditions. You will need to specify the new custodial periods that the non-moving parent will be exercising, both in the state where the non-custodial parent lives, as well as in the state to which the children will be moving. A decision as to who will pay travel costs also needs to be considered. Bear in mind that the court has been able to order that child support paid be set aside in a travel trust fund, to be used to finance the children’s travel, in the event of a move away.
(b) Fight the move away, either by filing a motion to prevent the children from moving or opposing the move where the other parent is required to obtain permission to relocate the children. It may be necessary to obtain ex parte orders preventing the children from moving until the psychological evaluation can be completed and the hearing held. In view of the court’s desire to maintain the status quo and the time it takes to complete a psychological evaluation and actually have a hearing, if the children are allowed to leave, their new residence may become the status quo even before the issue is ever heard by a judge.
The court will consider whether the move is being made to frustrate visitation by the other party. Thus, if you represent the party wanting to move, you should still obtain evidence that the move is necessary or important (such as for a new job, new marriage, etc.). If you represent the party opposing the move, you should produce evidence that supports this position, such as prior contempts, threats, etc.
If the court does allow the move and the move is to a foreign jurisdiction, then there are additional orders the court must make to ensure that California remains the court with jurisdiction. These orders include requiring the moving party to consent to exclusive and continuing jurisdiction by California and having the moving party post a bond to provide money for fees and travel costs in the event the moving party attempts to change jurisdiction. Remember that under the Hague Convention after the children have lived in a jurisdiction for a year, this alone conveys jurisdiction in the new jurisdiction. In re Marriage of Condon (1998) 62 Cal. App. 4th 533, 73 Cal. Rptr. 2d. 33.
5. Rights of Grandparents and Third Parties for Access to or Custody of Children:
If you represent grandparents, there are three different code sections under which you may apply for visitation, depending upon the facts in your action.
(a) Family Code §3102 authorizes parents, siblings and grandparents of other children of a deceased person to request visitation with the deceased person’s children. The court must making a finding of best interest for the visitation and in granting visitation must consider the amount of personal contact between the person and the child before the application for the visitation order.
This provision specifically does not apply if the child has been adopted by a person other than a stepparent or grandparent of the child. Any visitation order would likewise terminate if such an adoption occurs.
(b) Per Family Code §3103 grandparents may seek visitation in any custody proceeding. (This would include dissolutions, paternity, actions under the DVPA.) The court must find that such visitation by the grandparent is in the best interest of the child. There is a rebuttable presumption affecting the burden of proof that visitation by grandparents is not in the child’s best interests if both parents agree that the grandparent should not have visitation. Warning to grandparents. This provision allows the court to allocate the percentage of grandparent visitation between the parents for purposes of child support. The court may also order the grandparent or parent to pay the other support which is specifically defined as costs relating to transportation or basic expenses of the child such as medical, day care costs and other necessities.
(c) Per Family Code §3104 Grandparents may bring an action themselves requesting visitation with their grandchildren. The court may order visitation if it finds that it is in the child’s best interests, that there is a preexisting relationship between the child and the grandparent. The court must balance the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.
A petition under this section can not be filed where the parents are married, unless one of the following exists:
(1) The parents are currently living separate and apart.
(2) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse.
(3) One of the parents joins in the petition with the grandparents.
(4) The child is not residing with either parent.
There are two rebuttable presumptions:
(d) One presumption is that grandparent visitation is not in the child’s best interests if the parents agree that the grandparent should not be granted visitation rights.
(e) The second presumption specifically affects the burden of proof that the visitation of a grandparent is not in the best interest of a minor if a parent with sole legal and physical custody in another proceeding, or with whom the child resides, if there is currently no operative custody order objects to visitation by the grandparents.
Warning to grandparents who want visitation rights. This provision allows the court to allocate the percentage of grandparent visitation between the parents for purposes of the calculation of child support and further allows the court to order the grandparents to pay support to the parent of the child for costs of transportation, and basic expenses of the child such as medical, day care costs and other necessities. The court could also order the parent to pay the grandparent child support.
The court will also require mediation (conciliation court) in any action where a grandparent has requested visitation rights. Cal. Fam. Code §3171
A stepparent may obtain visitation if the court finds that it would be in the child’s best interests. If a protective order, either enjoining a person from specific acts of abuse or an exclusion order has been granted, the court must consider whether best interests requires that visitation be denied.
The court cannot make an award of custody, it is specifically limited to visitation requests. In re Marriage of Lewis and Goetz (1988) 203 Cal. App. 3d 514, 250 Cal. Rptr. 30.
A stepparent is defined as a person who is a party to the marriage that is subject of the proceeding, with respect to the minor child of the other party to the marriage. Thus, the venue for visitation is within the stepparent and the parent’s dissolution action or DVPA action. The court may not order visitation which would conflict with the right of custody or visitation of a birth parent who is not a party to the proceeding.
Unlike grandparents there is no provision for ordering support by a stepparent requesting visitation. Cal. Fam. Code §3101.
The court will order mediation (counseling) in any action where the step parent has requested visitation. Cal. Fam. Code §3171.
Gay and Lesbian Partners
The court does not have jurisdiction to grant custody or visitation rights to the child’s nonbiological lesbian or gay parent. This is true regardless of the child’s existing “parental” relationship with the nonbiological parent. In Curiale v. Reagan (1990) 222 Cal. App. 3d 1597, 272 Cal. Rptr. 520, West v. Superior Court (1997) 59 Cal. App. 4th 302, 69 Cal. Rptr. 2d,
Parental Kidnapping Prevention Act
Because state interpretations of the Uniform Child Custody Jurisdiction Act (UCCJA) vary, the Parental Kidnapping Prevention Act (PKPA, 28 U.S.C. 1738A) was enacted to set forth certain basic rules for determining jurisdictional disputes. The PKPA was designed for enforcement by state courts and preempts state law. In re Marriage of Pedowitz (1986) 179 Cal. App. 3d 992, 225 Cal. Rptr. 186 The PKPA provides that the home state of the child shall have custody jurisdiction, unless one state asserts continuing jurisdiction (28 U.S.C. 1738A(c)(2)).
Under the PKPA, the state that rendered the original custody decree can assert jurisdiction in any modification proceedings as long as one of the parties remains a resident and that state has jurisdiction under its own laws. (Alaska, for example, does not have jurisdiction under its own law; it uses the home-state test as the only basis for jurisdiction.)
The Supreme Court has held that the PKPA does not give federal courts jurisdiction to resolve custody disputes between two states. Thompson v. Thompson (1988) 484 U.S. 174, 108 S. Ct. 513, 98 L. Ed. [2d] 512. Thus, there is no way to resolve competing state-court interpretations of the act.
California is the proper forum under PKPA to litigate custody of minor born and delivered into custody of prospective adoptive parents in California. Rogers v. Platt (1988) 199 Cal. App. 3d 1204, 245 Cal. Rptr. 532
A decision of state court, made under PKPA and full faith and credit clause, does not prevent extradition of state’s citizen charged with child stealing in another state. California. v. Super. Ct. of California (Smolin) (1987) 482 U.S. 400, 96 L. Ed. 2d 332, 107 S. Ct. 2433.