Child Custody Definitions

Child Custody: Overview

Best Interest of Child (BIC)

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Application of Best Interest Standard

Best interest factors apply in any

Proceeding for dissolution, legal separation, or nullity

Proceeding for exclusive custody

Proceeding to determinate custody under DVPA

Proceeding under UPA [Fam C 7600 et seq.]

Court may make order for custody that seems necessary or proper during minority of child [Fam C 3022]

Broad Application

Weighing & Determining the Best Interest Standard

Understanding BIC Standard

Best Interest Standard

Best Interest Standard (cont’d)

Sexual Orientation

Immigration Status

Not Per Se Best Interest Factors

Religious Freedom Cases

Religious Freedom Cases (cont’d)

Domestic Violence Considerations

DV Considerations (cont’d)

Balancing Child Welfare First: Fam C 3020(c)

Health Safety & Welfare Factors

Do You Got What it Takes

Best Interest Standards

Marriage of Carney (1979) 24 Cal.3d 725

Marriage of Carney (cont’d)

The Essence of Parenting

The Essence of Parenting (cont’d)

Codify Marriage of Carney: Fam C 3049

Best Interest Standards

Protecting the Legacy

Other Disability Related Cases

Other Best Interest Considerations

Best Interest Standards

A Presentation Model & Analysis

Fam C 3011 sets the standard for THEchild

Health

Safety

Welfare

Substantiated history of abuse of parent or child

Habitual or continual use of drugs or alcohol

The court has the broadest discretion to determine orders consistent with best interest [Marriage of LaMusga (2004) 32 Cal.4th 1072]



Parental Selfishness & Child Custody Proceedings

Conflict Resolution Style

Extended Family Relationships

Child Custody Definitions

As prerequisite to consideration of allegations of abuse

Court may require substantial independent corroboration including

oWritten reports by law enforcement

oChild protective services or other agencies

oMedical records

oService reports of agencies providing services to victims [Fam C 3011(b)]

Threshold Showing of Abuse for Best Interest Determination

Other Best Interest Factors

Nature and amount of contact with both parents [Fam C 3011(c)]

Habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol [Fam C 3011(d)]

Court may require independent corroboration from law enforcement or medical or social welfare facilities

Summary of Code Definitions

Other Best Interest Factors (cont’d)

If court grants joint or sole custody to abusive parent or parent who is using drugs or abusing alcohol, court shall

State reasons in writing or on the record; and

Make a specific order regarding time day place and manner of transfer of child [Fam C 3011(e)(1)]

Legislation & Forms

Fam C 3011 amended eff. 1-1-2013

Concerning habitual or continual abuse of prescribed medication

Along with controlled substances and alcohol

Thank You forYour Service

Military Service & Custody

Get Back to Where You Once Belonged

Military Service & Custody

In re Marriage of E.U. and J.E. (2012) 212 Cal.App.4th 1377 (CA-4(3))

F is deployed to Afghanistan and later to Korea

T/Ct grants M’s custody order during deployment

Upon F’s return, he sought reversion to pre-deployment order under Fam C 3047

F filed a writ petition which was denied

Rev den 3-27-13

Marriage of E.U. and J.E. (cont’d)

Apparently T/Ct ordered a custody evaluation under Ev C 730

The evaluation found no mental or physical impairment to F

Evaluation found no change in location of parent’s homes

Rev den 3-27-13

Marriage of E.U. and J.E. (cont’d)

T/Ct found delay caused by family law system, F’s inaction, and time for evaluation

Under best interest standard, T/Ct found it would not change order

F appeals

CA-4(3): REVERSES with instructions

Rev den 3-27-13

Marriage of E.U. and J.E. (cont’d)

Under Fam C 3047, the burden rested with M

To show that pre-deployment custody should not be reinstated

Any hearing on whether the custody order will revert must be fair, efficient, and expeditious

A 17 month delay fails by this standard

Rev den 3-27-13

Marriage of E.U. and J.E. (cont’d)

In review of the report by Dr. G

The report concluded that best interest of C rest in continuity and stability

Of the current order

The continuity and stability considerations

Unduly favor the non-deployed parent

Rev den 3-27-13

Marriage of E.U. and J.E. (cont’d)

On remand, the sole issue will be

Whether to restore custody immediately or

Wait until the end of the school year

Rev den 3-27-13

Custody & Military Families

Amended Fam C 3047 prohibits T/Ct from ordering a custody evaluation

As part of its review of a temporary custody order

Absent showing reversion is not in C’s best interest

New Legislation

Custody & Military Families (cont’d)

Deployment is a temporary absence

Under UCCJEA

T/Ct is required to expedite hearings

Involving returning military personnel

New Legislation

Fam C 3047: Parent on Active Military Duty

Fam C 3047 addresses custody orders

Where a parent is on active military duty

If changes in a custody order become necessary

The changes are only temporary for the period of service

Any order should provide for frequent and continuing contact for child with the absent parent

AB 2416 (Stats 2010, Ch. 466) Eff. 1-1-2011

Parent on Active Military Duty (cont’d)

Absence, relocation, or failure to comply with custody visitation order

Alone is not sufficient to justify modification of custody or visitation order

If party is

Active in military service and

Deployed outside of CA

Fam C 3047

Parent on Active Military Duty (cont’d)

The purpose of the changes is to

Simplify

Expedite the process

For resolving child custody and visitation issues

For those serving our country

The changes create a reversionary presumption

Fam C 3047

Parent on Active Military Duty (cont’d)

That the order should revert to the earlier order

When the service deployment, mobilization, or temporary duty ends

Court may grant reasonable visitation to

Stepparent

Grandparent or

Other family member

Fam C 3047

Parent on Active Military Duty (cont’d)

Court ordered visits for other family members are permissible

Amendments apply to deployment and mobilization and temporary duty as defined in Fam C 3047(d)

Fam C 3047

Parent on Active Military Duty (cont’d)

Reasonable visitation is appropriate

If a prior relationship existed with the non-party

The court must consider whether the order

Would facilitate child’s contact with absent parent

The court must balance interest of C in access to other family against parental authority

Fam C 3047

Parent on Active Military Duty (cont’d)

Court shall expedite hearing

Court shall allow absent parent

To participate in mediation by electronic means

Any grant of visitation to a nonparent

Does not affect timeshare for purposes of support

Fam C 3047

I Know It When I See It!

The Dictionary Game for the Obtuse at Heart: Stop Means Stop

In re Marriage of Hartmann(2010) 185 Cal.App.4th 1247 (CA-2(6))

Marriage of Hartmann (cont’d)

Special Needs Children

Best Interest Standards

Custody Assessments & Special Needs Considerations

In re Marriage of Heath(2004) 122 Cal.App.4th 444 (CA-2(7))

T/Ct erred by splitting custody of brothers

Based on assumption that autism of one child would harm the other child

Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519: Court may separate siblings if necessary because one child is poisoned against a parent as the only means of preventing alienation of the other child

Discrimination Prohibited for Special Needs Child

Custody Assessments & Special Needs

Evaluators should conduct

Review of educational files

Review of medical files

Parental reaction paradigms

Parental willingness to learn new skills

Parental withholding of information

Hyper-vigilant parent & parental denial

Understanding link between stimulus & behavior

Special Needs Children

Child Preference:Fam C 3042

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Child’s Preference: Fam C 3042

Child’s Preference (cont’d)

Guidelines to Determine Best Interest

Case by Case Determination: CRC Rule 5.250(a)

Determine Best Interest (cont’d)

Means for Taking Testimony

Child’s Preference: CRC Rule 5.250

Child’s Preference (cont’d)

CRC Rule 5.250(e)

Evaluators or others assigned to meet with C must

Provide C with information about the process by which T/Ct will make decision

Provide to parents information about local court procedures relevant to C’s participation about how to best support the C in an age-appropriate manner

Responsibilities of Court-Connected or Appointed Professionals

CRC Rule 5.250(f)

T/Ct’s methods of providing info may include

FCS meeting jointly or separately with parents to discuss alternatives to C’s direct testimony

C’s orientation about the court process

Methods of Providing Info to Parents and Supporting Children

CRC Rule 5.250(f) (cont’d)

T/Ct’s methods of providing info may include

Providing information to parents before and after a C participates or testifies

Information in mediation orientation about C’s participation

C’s waiting room and interpreter if necessary

Methods of Providing Info to Parents and Supporting Children

CRC Rule 5.250(g)

Anticipates training for judicial officers

On C’s participation in family court process

Methods other than direct testimony

Procedures for taking C’s testimony

Education and Training

Child Decision Making

AB 499 amended Fam C 6926 so a minor over 12 may consent to medical care

Related to the prevention of a sexually transmitted disease

Without parental consent

The parents are not liable for payment for medical care provided where they did not consent to the treatment

Worth Mentioning

People v. Lujan (2012) 211 Cal.App.4th 1499

Non-victim C may testify by remote video conferencing

Without violating confrontation clause

Substance Abuse Testing

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Controlled Substance Testing

Court may order drug or alcohol testing if court makes finding by preponderance of evidence of

Habitual

Frequent

Continual illegal use of controlled substance or alcohol

Drug Testing Under Fam C 3041.5

Controlled Substance Testing (cont’d)

Types of evidence can include conviction for illegal use or possession of controlled substance

Testing shall be least intrusive method of testing or illegal use

Only urine testing complies with USDHHS testing of federal employees

Court has no authority to order hair follicle testing [Deborah M. V. Superior Court (2005) 128 Cal.App.4th 1181]

A positive test alone shall not be basis for adverse custody determination

Controlled Substance Testing (cont’d)

Test results are

Confidential

For use only in family law proceeding

Court may impose civil sanctions up to $2,500 for improper disclosure

Controlled Substance Testing (cont’d)

In re Drake M. (2012) 211 Cal.App.4th 754

F’s limited use of marijuana

3 times a week for arthritis per Rx as a legal user

Not sufficient for W&I C 300petition for F as substance abuser

I Don’t Want to Go to Rehab

Child Custody

Heidi S. v. David H.(2016) 1 Cal.App.5th 1150 (CA-2(1))

M files RFO to modify J/Ct judgment (exit order)

Under exit order, F has custody and M has supervised visits

T/Ct found sufficient change of circumstances under W&I C 302(d)

No pet f

Heidi S. (cont’d)

T/Ct issued orders for

Increased visitation but not a change of custody

Order for drug testing under Fam C 3041.5

Step up order with reversionary terms if M resumed substance abuse

M appeals

CA-2(1): AFFIRMS

No pet f

Heidi S. (cont’d)

J/Ct custody evaluation under Ev C 730

Found M was a “very disturbed person”

With psychopathic tendencies

No pet f

Heidi S. (cont’d)

M was abusing drugs

Sleeping aid medications

Opiates

Ativan

Xanax

Ritalin

No pet f

Heidi S. (cont’d)

T/Ct modified the exit order

Creating a 3-tiered visitation plan for stepped up visitation

The order phased out the monitored visitation requirement

No pet f

Heidi S. (cont’d)

M was also required to drug test six times per month continuing indefinitely

If M missed a test or tested positive, then she went back to monitored visits

No pet f

Heidi S. (cont’d)

The COC rule applies to exit orders based on W&I C 302(d)

Since the statute specifically requires the COC be shown

T/Ct could properly consider what happened in the J/Ct

In re Chantal S. (1996) 13 Cal.4th 196

No pet f

Heidi S. (cont’d)

T/Ct struck an appropriate balance in acknowledging that changed circumstances warranted modification

But also determining that those changes did not justify

The full remedy requested by mother, particularly her request for custody

No pet f

Heidi S. (cont’d)

T/Ct complied with Fam C 3041.5 concerning the drug testing

Because the exit order was made part of the family law order under W&I C 362.4

T/Ct was required to find a sufficient basis for testing under the Family Code

No pet f

Heidi S. (cont’d)

T/Ct is not required to put on blinders and ignore what happened in the J/Ct

Nothing in Fam C 3041.5 contains a limitation on how long drug testing can be required

No pet f

Heidi S. (cont’d)

T/Ct had authority to change the visitation under Fam C 3041.5

Since a change in visitation is not a change in custody

Reduction in visitation would follow only a final determination

On the validity of a positive test result, including a hearing

No pet f

Custody & Domestic Violence Issues

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Domestic Violence & Custody

Rebuttable presumption that

Award of sole custody

Or joint custody

To perpetrator of domestic violence within previous five years

Is detrimental to best interest of child

Rebuttable by preponderance of evidence [Fam C 3044(a)]

Fam 3044: Presumptions and Rebuttals

Overcoming Presumption

Perpetrator may show

Award of sole or joint custody is in best interest of child, but cannot rely on preference for frequent and continuing contact [Fam C 3044(b)(1)]

Successfully participated in batterer’s treatment program [Fam C 3044(b)(2)]

Domestic Violence & Custody

Overcoming Presumption (cont’d)

Perpetrator may show (cont’d)

Successfully completed drug or alcohol treatment program [Fam C 3044(b)(3)]

Successfully completed parenting class [Fam C 3044(b)(4)]

Domestic Violence & Custody

Overcoming Presumption (cont’d)

Perpetrator may show (cont’d)

Complied with probation or parole [Fam C 3044(b)(5)]

Complied with terms of protective order or restraining order [Fam C 3044(b)(6)]

Abstained from further acts of domestic violence [Fam C 3044(b)(7)]

Domestic Violence & Custody

Fam C 3044: Perpetrated DV

Fam C 3044(c): “Perpetrated Domestic Violence” means finding by court of

Intentionally or recklessly causing or attempting to cause bodily injury

Sexual assault

Causing reasonable apprehension of imminent serious bodily injury

o

Domestic Violence & Custody

Fam C 3044: Perpetrated DV (cont’d)

Fam C 3044(c): “Perpetrated Domestic Violence” means finding by court of

Threatening, striking, harassing, destroying personal property, or disturbing the peace sufficient to justify issuance of RO under DVPA

Conviction or no contest plea within past 5 years for DV

Finding by any other court of DV whether or not it heard custody proceedings [Fam C 3044(d)]

Domestic Violence & Custody

Fam C 3044: Perpetrated DV (cont’d)

Fam C 3044(e): Independent finding of DV requirement – court may not base finding that party perpetrated domestic violence

Solely based on conclusions reached in custody evaluation, or

Recommendations of Family Court Services

Court must consider any relevant admissible evidence submitted by the parties [Fam C 3044(c)]

Court has independent duty to inform parties of Fam C 3044in any case involving DV

Domestic Violence & Custody

I Love that Dirty Water

Child Custody

Ellis v. Lyons (2016) 2 Cal.App.5th 404 (CA-2(5))

F and A became involved in a physical altercation in the presence of C

C told F he was overweight, antisocial, and suffered from OCD

F threatened to slap C and then he apologized

Rehg den 9-2-16; rev den 11-9-16

Ellis (cont’d)

M applied for ex parte orders in Los Angeles Central district

Rather than in Pomona branch where case was pending

T/Ct denied ex parte and required M to give notice and proceed in Pomona

M elected to seek a DVPA order in Massachusetts (MA)

Rehg den 9-2-16; rev den 11-9-16

Ellis (cont’d)

F participated in the MA action

MA T/Ct issued order of protection for C restraining F

M sought sole legal and physical custody under Fam C 3044

T/Ct commented that the MA order was improperly issued

Rehg den 9-2-16; rev den 11-9-16

Ellis (cont’d)

Parents agreed that the MA order was set to expire and would not be extended

T/Ct found that F was clearly the parent more likely to allow C frequent and continuing contact with M

T/Ct denied M’s request

M appeals

Rehg den 9-2-16; rev den 11-9-16

Ellis (cont’d)

CA-2(5): REVERSES and REMANDS

T/Ct has broad discretion to award custody

Marriage of Burgess (1996) 13 Cal.4th 25

When an order of protection is issued even by another state, T/Ct must apply Fam C 3044

Rehg den 9-2-16; rev den 11-9-16

Ellis (cont’d)

T/Ct’s failure to make express findings under Fam C 3044 requires reversal

Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731

Marriage of Fajota(2014) 230 Cal.App.4th 1487

Panel rejects M’s claim that T/Ct was embroiled or engaged in impermissible gender bias



Rehg den 9-2-16; rev den 11-9-16

Ellis (cont’d)

Justice Turner’s concurring opinion

Addresses the impact of Ev C 664

Presumption that judgment was properly rendered

Fam C 3044 mandates T/Ct findings

Concerning impact of DV when T/Ct makes a custody order

Rehg den 9-2-16; rev den 11-9-16

Child Sexual Abuse Issues

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Child Sexual Abuse Allegations

Court has authority to take any reasonable steps necessary to protect child pending investigation [Fam C 3027(a)]

Court may order child welfare agency investigation [Fam C 3027(b)]

Court may set RFO for sanctions against parent who knowingly makes false abuse allegations to compensate accused parent [Fam C 3027.1]

Family Law Proceedings

Child Sexual Abuse Allegations (cont’d)

Court shall not limit custody or visitation rights of accusing parent

Who acts with good faith belief and

Acted lawfully to protect child

Child Sexual Abuse Allegations (cont’d)

Court may limit custodial access for accusing parent if court finds

Allegations are knowingly false

With substantial evidence of intent to interfere with other parent’s lawful contact

Determination that limits are necessary to protect health, safety, and welfare of child

With consideration of policy to ensure frequent and continuing contact [Fam C 3027.5]

Limitations For Certain Offenses

Registered sex offenders where victim is a child shall

Only have supervised visitation

Unless court finds no significant risk to child