Entries Tagged 'Child Custody' ↓

Grandparent Rights

Almost fifteen years ago, these authors examined the nascent trend of expanding visitation rights of nonparents, in their article “Stepparents, Grandparents, Lovers and Friends.” (Los Angeled County Bar Association Family Law Section News and Rreview Vol 7, No. 2) At that time, relatives and others who had some sort of relationship with a child were increasingly able to obtain court-ordered visitation with the child, over the objections of the parents.

Recently, in Troxel v. Granville (June 6, 2000) 2000 Daily Journal D.A.R. 5831, the United States Supreme Court made a rare incursion into the realm of visitation rights, a matter which the Court has traditionally left to the states. The Troxel decision, which appears to limit the availability of nonparental visitation, offers family law practitioners an analysis of the role of federal substantive due process and Constitutional rights on child custody litigation and the statutes governing such litigation. Continue reading →

Focus On The Best Interest of The Child

The Fourth Apellate District’s decision in Craig L. v. Sandy S. (2004) DJDAR 1505(a), is the latest pronouncement from the California Courts of Appeal holding that when there are dueling and/or competing “presumptions” of parentage the courts should focus on the best interest of the child, as opposed to maintaining the integrity of a marriage.

Craig L. and Sandy S., both married to others, had an affair in the Spring of 2001. Sandy became pregnant during the affair, and gave birth to Jeffrey S. on February 11, 2002. Routine blood testing at the hospital revealed that Brian could not be Jeffrey’s father. Sandy ultimately confessed the affiar to her husband, Brian, and told him that only Craig could be Jeffrey’s biological father. Craig L. also confessed to his wife, Katherine L. that he had had an affair. Craig and Katherine agreed to participate as fully as possible in Jeffrey’s upbringing. Craig L. signed a child support agreement for payments to Sandy S. The agreement provided that Craig’s wife Katherine would take care of Jeffrey three to four days a week in their family home. The visitation later included one overnight stay each week, as the child got older. Craig further alleged that he held Jeffrey out to his family and friends as his son. Continue reading →

Its Not Final Until It’s Final

Rose v. Richardson, (2002 DJDAR 11827)

In the Supreme Court case of Montenegro v. Diaz (2001), 26 Cal.4th 249; 109 Cal.Rpt.2d 575, the Court clearly stated that a custody stipulation entered into by the parties will not constitute a final judgment of custody unless there is a “clear, affirmative indication” (Page 581) that the parties intended it to constitute  a final judgment of custody. The practical effect of this finding is that if there is not a final adjudication of custody, any modification or changes in custody require only a showing of “best interest” and not a showing of the more difficult “a change of circumstances”. In custody litigation, this is a very significant difference. Often, a change in the custody/visitation schedule may be appropriate post judgment based upon the child’s age, multiple attachments, passage of time or other changing social and developmental needs that would impact upon a child’s “best interest”. However, parties are often unable to establish that the aforementioned happenings constitute result a “change of circumstances”. This increased post judgment burden is particularly important in “move away” cases where one party has “custody” and the other party  has only “visitation”. Continue reading →

Developments and Advances in Fertility Sciences Often “Cloud” the Issue as to Parentage

ROBERT B., Plaintiff and Respondent, DENISE B., Plaintiff and Appellant, v. SUSAN B., Defendant and Appellant. H024926. COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT
2003 Cal. App. LEXIS 873

June 13, 2003, Filed

Developments and advances in fertility sciences often “cloud” the issue as to parentage from a legal standpoint. The recent case of Robert B. and Denise B. v. Susan B. { WE DO NOT HAVE THE CITE YET} deals with the interplay of law and science. Continue reading →

In In re Nicholas H.

In In re Nicholas H. (6/6/02) 2002 Daily Journal D.A.R. 6249, the California Supreme Court has ruled that when a man seeks parental rights, the presumption that a man who receives a child into his home and openly holds the child out as his natural child is not necessarily rebutted by clear and convincing evidence that he is not the biological father.

Family Code § 7611(d) creates a presumption that a man is the natural father of a child if he “receives the child into is home and openly holds out the child as his natural child.”  Pursuant to Family Code § 7612(a), that presumption is “a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.” Continue reading →

Joint Physical Custody – What Does It Really Mean?

“Time Care, The Definition of Joint Custody Remains Elusive”
Los Angeles Daily  Journal ,  issue  #173, Vol  111, 9/8/98

What, exactly, is joint physical custody?  Is it “fifty-fifty”?  Is 33 percent enough? What about a 60-40 arrangement; or five nights out of 14?  Is there some other “bright line,” by which courts and litigants can readily see that a particular custodial arrangement is, or is not, joint physical custody? As Justice Donald King wrote some years ago in In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508:

It is doubtful that any two words mean as many different things to as many different people as the words “joint custody.”  211 Cal.App.3d at 1515.

And it is equally doubtful that any two words have produced as much confusion in as short a time-span as those words applied in the context of cases in which one parent seeks to relocate with the parties’ children. Continue reading →

Change of Circumstances

The recent case of Montenegro v. Diaz (7/10/00) 97 Cal.Rptr.2d 782, raises a little higher the obstacle of presenting a factual “change of circumstances” which must be hurdled by a custody litigant seeking to modify a permanent decree of custody and visitation.  This case, a reversal of a trial court order changing custody from mother to father, arose out of the all-too-frequent pattern of a parent with a “bad attitude” who is and always has been intent on interfering with the other parent’s custodial time with the child.  The Montenegro court held, in effect, that if the “bad attitude” existed prior to the time a permanent custody order was entered, either after trial or by stipulation, the degree of continuing interference as displayed in the Montenegro case with the custodial relationship does not amount to a change of circumstances and thus the custody decree cannot be modified to ameliorate the interference. Continue reading →

What is Meant by “Joint Legal Custody”

To the inexperienced practitioner, legal custody is an afterthought. These attorneys will assist their clients in fine-tuning the physical custody provisions of their judgment or order, but pay little attention to the details of the legal custody order — sole or joint; decision-making to require agreement or not? Continue reading →

Family Code Section 3040

Often in child custody litigation, the court has to make a tough call as to the physical time share. Family law litigators often advise clients not to demonstrate a “bad attitude” in conjunction with the sharing of custody, or exercise of visitation of children with the other party. A demonstration of “bad attitude” by a party can not only be one of the compelling reasons why the court doesn’t award that party custody, but as demonstrated in the recent Appellate case of In re Marriage of Dupre (CO 46938) same can also lead to monetary awards against a party and their attorney. Continue reading →

Final Order in Family Law Case Is Not Always Closure

Los Angeles Daily Journal, Vol.117, Issue 219, November 10, 2004

When a hotly contested child custody case spills over into a juvenile dependency case, most family law attorneys will not continue handling the child custody portion of the case in this new arena.  Once a dependency matter is commenced, the child custody portion of the family law case is stayed. However, remaining family law issues, such as property division and support are not stayed. Typically, a family law attorney will wait until the dependency case has terminated to resume working on child custody issues. The recent case of In Re Marriage of David M. and Martha M. (2006)DJDAR7065 (”David M.”, suggests that the family Law practitioner may want to have input in the dependency matter before dependency jurisdiction terminates. Continue reading →

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