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Child Custody & Visitation

Registering Your Out-of-State Custody Order

By | Child Custody & Visitation, Court Orders, Divorce, Legal Document Preparation, Parentage | No Comments

Enforcement of Your Out-of-State Custody Order

If you have moved to the state of California from another state, you may register your out-of-state custody order for purposes of enforcement.  Once the order has been registered in your local court, if the other parent violates the custody order, you can pursue legal remedies to enforce the order.  Without the order being properly registered, the California court cannot enforce it.  

How to Register Your Out-of-State Custody Order

There are a few steps in the registration process.  

First, you must complete the required court form titled, “Registration of Out-of-State Custody Order” (FL-580).  You must attach two copies of your out-of-state order to the FL-580 form.  One of the copies must be a certified copy.  The other may be a photocopy.  You will sign the form under penalty of perjury asserting that, to the best of your knowledge and belief, the order has not been modified.  

Second, you must complete the required court form titled, “Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)” (FL-105).  This court form references other related cases involving your children, if any, an address history for your children and other related information.  

Last, you must complete any additional local forms required by your jurisdiction. For example, in Orange County the court requires a local form titled, “Family Law Notice Re Related Case” (L-1120) for all new matters.  

Once you submit your custody order to the court for registration, the court clerk will send notice of your registration packet to the other parent.  If the other parent wants to contest the validity of the out-of-state custody order, they must do so within 20 days of the date the notice was mailed to them.  The request must be in writing and filed in the court case.

The Court Hearing Process if the Validity of the Custody Order is Contested

At the court hearing, in order to avoid the court confirming the out-of-state custody order, the other parent must prove at least one of the following three things:

1.The issuing court did not have jurisdiction.
2.The child custody order you requested registration of has been vacated, stayed or modified by a court having jurisdiction to do so.
3.The other parent was entitled to notice of the original order, but did not receive proper notice.  

Modifying the Out-of-State Custody Order Once Properly Registered in CA

Once your out-of-state custody order is registered in California, you may request a modification of the order under certain circumstances.  The circumstances in which you may request a modification involve a more complex analysis.  Our experienced attorneys can explain the process to you in more detail.

Free Consultation

Contact us today for a free confidential phone consultation so we can discuss your questions about the registration process to see if you qualify to request a registration in California and further, if you have sufficient basis to request modification of the order once registered.

How Child Custody Impacts Child Support

By | Child Custody & Visitation, Child Support, Move-away, Parentage | No Comments

Difference between Child Custody and Child Support

California courts view child custody and child support as two distinct issues:

  • Child support is based on a parent’s obligation to financially support his or her child.
  • Child custody is based on protecting a child’s best interest.

In determining a custody arrangement that is in a child’s best interest, the court will generally consider a parenting plan that encourages frequent and continuing contact with both parents (unless there has been a history of domestic violence or abuse).

How Child Custody Impacts Child Support 

With that said, child custody does have an impact on child support.  This is because the support amount is affected by the percentage of time a child spends with each parent.  Since child support is considered the non-custodial parent’s means of financially providing for a child, the support payments may be higher when one parent has minimal to zero contact.  Conversely, the child support payments may be lower when each parent has roughly equal amounts of parenting time.

It is important to keep in mind that a parent may not refuse or limit the other’s parenting time if child support has not been paid.  Although it may seem unfair to see a parent evade his financial responsibilities, a parent cannot deny the other parent his or her parenting time because of unpaid child support.  The non-paying parent still has a right to see his or her child—regardless of whether that parent is up-to-date on his or her child support payments.  The issue of non-payment of child support must be dealt with through the courts.

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Child custody and child support issues can become complex when parents are unable to resolve their differences. Contact us today for a free confidential phone consultation so we can discuss your situation and advise you about the options available to you.

Moving Away With Your Child

By | Child Custody & Visitation, Move-away | No Comments

Generally, when one parent desires to relocate to another city, county, state or country with their child, he or she needs to obtain the consent of the other parent. If the non-moving parent does not consent, the moving parent can request a move-away order from the court.

MOVE AWAY REQUEST WHEN ONE PARENT HAS SOLE OR PRIMARY CUSTODY

Generally, a parent who has sole or primary physical custody has a presumptive right to move away with a child. That is, he or she does not have to prove to the court the move is necessary.

However, the non-custodial parent has the right to challenge the custodial parent’s desire to move away. If the non-custodial parent challenges the move, that parent must prove to the court it would be detrimental to the child if the custodial parent were allowed to relocate.

If the non-custodial parent is able to show the relocation is not in the child’s best interest, he or she may then request a change in custody.

MOVE AWAY REQUEST WHEN BOTH PARENTS SHARE JOINT CUSTODY

If the parents share joint physical custody, the moving parent must show the court the move is in the child’s best interest—if the other parent opposes the move.

FACTORS THE COURT CONSIDERS IN A MOVE-AWAY REQUEST

The factors the court considers in determining whether the relocation is in a child’s best interest or if the child would suffer detriment from the relocation (and in turn, whether custody should be modified) are as follows:

  1. Child’s age
  2. Child’s relationship with both parents
  3. Distance of the move
  4. Reasons for the proposed move
  5. Extent to which the parents are sharing custody
  6. Child’s interest in stability and continuity in the custodial arrangement
  7. Wishes of the child (if they are mature enough for such an inquiry to be appropriate)
  8. Relationship between the parents:
  9. Their ability to communicate and cooperate effectively; and
  10. The willingness to put their child’s interest ahead of their own.

In a move-away case, it is important for a parent requesting the move-away to frame the request in a way that will show the move away is in the child’s best interest and will not frustrate the non-custodial parent’s relationship with their child.

When opposing a move-away request, the parent would need to show the move would be detrimental to their child (e.g., the move would frustrate his or her ability to have frequent and continuing contact with the child).

FREE CONSULTATION

Move-away cases are among the most complex of all family law matters, and the consequences of a court’s ruling can have a profound impact on both the parents and child.

Whether you are the moving or non-moving parent, contact us today for a free confidential phone consultation so we can explain the process and explain your options.

How to Deal with an Alienating Parent

By | Child Custody & Visitation | One Comment

When a family unit breaks apart or deteriorates over time, children often suffer as a result. Emotions can run high between parents in a divided family with children feeling torn in their emotions to not disappoint either parent by choosing sides. Most parents would say with confidence their child is the most important person in their life, yet many lose sight of that fact during a divorce or break-up of a relationship. The pain of rejection, betrayal or failure can consume a parent and cause backlash towards the other parent—through their child.

WHAT IS ALIENATION?

Parent alienation is a prevalent theme in many family law cases. Alienation by one parent can be an intentional, conscious choice and a tool used cause the other parent pain. Alienation can also result without intention.
Alienation of a child is a form of manipulation. A parent will try to manipulate the love and affection of their child through guilt, subtle comments and even purposeful, disparaging remarks about the other parent.

CAN A PARENT BE DETERRED FROM ENGAGING IN ALIENATING CONDUCT?

Child custody orders can contain provisions to deter one parent (or both) from speaking negatively about the other parent in their child’s presence.
For example, the court can make the following orders to deter one parent from alienating the other parent:

1. “The parties will not make or allow others to make negative comments about each other or about their past or present relationships, family, or friends within hearing distance of the children.”
2. “Other than age-appropriate discussion of the parenting plan and the children’s role in mediation or other court proceedings, the parties will not discuss with the children any court proceedings relating to custody or visitation (parenting time).”
3. “The parties will communicate directly with each other on matters concerning the children and may not use the children as messengers between them.”
The above three examples are found on State Judicial Council form number FL-341(D) titled: Additional Provisions – Physical Custody Attachment.

SIGNS OF PARENTAL ALIENATION

Signs of parental alienation, although not an all-encompassing list, are as follows:

1. A child’s withdrawal emotionally from a parent.
2. A child’s parroting of the negative comments spoken by one parent about the other.
3. A child being overly protective of a parent.
4. A child’s lack of desire to spend time with a parent.
5. A child’s separation anxiety at custodial exchanges.
6. A child’s inquiry about matters related to the court case and details they would not be privy to unless heard from a parent.
7. A child’s refusal to engage in parenting time or activities with a parent.
The above indicators are common in family law cases where there is parental alienation (but of course can result from other causes as well).

THE RULE OF HEARSAY UNDER CALIFORNIA LAW

From an evidentiary perspective, you must consider how to get the information about parental alienation to the judge. When you file a motion called a “Request for Order” to address custody issues (either preliminary orders or a modification of current orders) you can declare, under penalty of perjury, the details you want to share with the judge, but in doing so you may draw from the opposing party (or their attorney) an evidentiary objection based on the “hearsay rule”.
“Hearsay” is defined by California Evidence Code section 1200 as follows:
(a) “Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.
(b) Except as provided by law, hearsay evidence is inadmissible.
(c) This section shall be known and may be cited as the hearsay rule.
Translation: If you want to share with the judge the details of what your child told you, a declaration alone will likely not be sufficient.

APPOINTMENT OF MINOR’S COUNSEL FOR YOUR CHILD

A tool that can be used for the purpose of addressing parental alienation (and other concerns related to your child) and additionally getting the details to the judge for consideration, is something called “minor’s counsel”. Minor children are allowed to testify in a family law proceeding only under very limited circumstances and it is not common at all. Due to this reality, the judge can choose to appoint an attorney for your child (called “minor’s counsel”) to interview your child about your child’s concerns. If minor’s counsel is appointed, the attorney is for your child only and not either parent. Minor’s counsel is appointed by the court to protect the best interest of your child.
California Rules of Court, Rule 5.240 deals with appointment of counsel to represent a child in family law proceedings.

CHILD CUSTODY EVALUATIONS

Another mechanism used to address parental alienation is a child custody evaluation. California Rules of Court, Rule 5.220 deals with court-ordered child custody evaluations. The rule states, in pertinent part, the following:
Purpose: “Courts order child custody evaluations, investigations, and assessments to assist them in determining the health, safety, welfare, and best interest of children with regard to disputed custody and visitation issues. This rule governs both court-connected and private child custody evaluators appointed under Family Code section 3111, Evidence Code section 730, or Code of Civil Procedure section 2032.”
A custody evaluation provides the court with an overall assessment of the family dynamics, each parent’s ability to meet their children’s needs as well as a recommended parenting schedule that is in the children’s best interest based on the assessment.
The process of a custody evaluation includes, but is not limited to, interviews of each parent and their children by the evaluator, observations of the parents and children together, review of the case file and interview with collateral contacts (e.g., extended family, school personnel, medical providers, etc.).

FREE CONSULTATION

Parental alienation is serious and can have a lasting impact on the parent-child relationship if not addressed promptly and properly through the court process.
Consulting with an attorney about the options of minor’s counsel and a child custody evaluation will help ease your mind about the process and arm you with information necessary to prepare yourself for what lies ahead.
Contact us today for a free, confidential phone consultation so we can discuss your situation and advise you about the options available to you.