Entries Tagged 'Articles' ↓

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 →

To Change or Not to Change, That is the Question

Los Angeles Daily Journal, Vol.111, issue #____, 5/ /99

In re Marriage of Congdon (1999) _____ Cal.App.4th ____, 82 Cal.Rptr.2d 686, imposes a burden of establishing a substantial change of circumstances on a parent seeking to adjust the parameters of a joint custodial timesharing arrangement.  Thus, Congdon rejects the holding of In Re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, and effectively denies modification  to a parental request to adjust a parenting plan based solely in  response to a child’s changing developmental needs. Continue reading →

Custody Modifications Post Birnbaum: Form Over Substance?

“Custody Modifications Post Birnbaum: Form Over Substance?”
Los Angeles County Bar Association Family Law News and Review,
Vol. 10, #4, Fall 89

When we last wrote about the field of child custody litigation (See “The Changing Nature of the Burden of Proof in Child Custody Litigation”: Family Law News & Review, Winter 1987), the California Supreme Court had recently issues its opinion in Burchard vs. Garay 42 Cal.3d 531.  At that time, the Court indicated a move away from the “change of circumstance” rule enunciated in In re Marriage of Carney (1979)  24 Cal.3d 725 and its prodigy.

Essentially, the Supreme Court in Burchard indicated that when there existed no court order or judicial determination of a custodial arrangement, the burden for changing same was a best interest test rather than a change of circumstance test.  (It is interesting to note that numerous commentators have cited the fact that both Carney and Burchard involved initial determinations of custodial arrangements by courts, yet the burden of proof to necessitate a change in both cases, was radically different.) Continue reading →

Child Custody Evaluations

In child custody and visitation cases, courts often appoint a mental health professional to conduct a child custody evaluation or psychological evaluation, pursuant to Evidence Code § 730. The expert will gather information from a variety of sources, including the parties, the child, witnesses, psychological testing and a home visit, and provide a written or, sometimes, oral report and recommendation to the court and parties. The report is not binding on the court, but it is usually powerful evidence bearing on the best interest of the children. Continue reading →

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