ESTABLISHING OR ESTABLISHING OR MODIFYING CHILD MODIFYING CHILD CUSTODY OR CUSTODY OR VISITATION ORDERSVISITATION ORDERSFAMILY LAW FACILITATORFAMILY LAW FACILITATOR

SANTA BARBARA COUNTY SANTA BARBARA COUNTY SUPERIOR COURTSUPERIOR COURT

GOAL:GOAL:

• To understand what is custody and To understand what is custody and visitationvisitation

• To understand what the court looks To understand what the court looks at in making ordersat in making orders

• To understand how such orders can To understand how such orders can be changedbe changed

WHAT IS “CUSTODY?”WHAT IS “CUSTODY?”

• Custody refers to who has Custody refers to who has “responsibility” “responsibility”

• 2 types:2 types:– Physical custodyPhysical custody

– Legal custodyLegal custody

PHYSICAL CUSTODY:PHYSICAL CUSTODY:

• Who isWho is responsible responsible for the child on for the child on the day-to-day level?the day-to-day level?

• Based on how much time the child Based on how much time the child spends with each parentspends with each parent

• Determines where the child will liveDetermines where the child will live

PHYSICAL CUSTODY:PHYSICAL CUSTODY:

• JointJoint: Each parent has : Each parent has significant significant periods of physical custodyperiods of physical custody– Does Does notnot need to be 50:50 to be joint need to be 50:50 to be joint

• SoleSole: The child lives with and is : The child lives with and is under the supervision of one parent under the supervision of one parent and the other parent has and the other parent has “visitation”“visitation”

VISITATION: VISITATION: Times when Times when non-custodial parent has non-custodial parent has the children and is fully the children and is fully responsible for themresponsible for them• Ex.: Every other weekend and one evening Ex.: Every other weekend and one evening

during the weekduring the week

• ““Supervised” visitation means that a Supervised” visitation means that a neutral third party is present during neutral third party is present during visitation:visitation:– Done by court orderDone by court order

– Due to drug, alcohol or physical abuse; mental Due to drug, alcohol or physical abuse; mental health problems; or long period of no contact health problems; or long period of no contact with childrenwith children

LEGAL CUSTODY:LEGAL CUSTODY:

• Who is Who is responsible responsible for making for making important decisions regarding the important decisions regarding the children’s “health, education and children’s “health, education and welfare”:welfare”:– Ex.: What kind of treatment will the Ex.: What kind of treatment will the

child get for a medical condition?child get for a medical condition?

– Ex.: Where will the child go to school?Ex.: Where will the child go to school?

– Ex.: What religion, if any?Ex.: What religion, if any?

LEGAL CUSTODY:LEGAL CUSTODY:

• JOINTJOINT: Both parents share the right and : Both parents share the right and responsibility to make the decisions responsibility to make the decisions about the child’s health, education and about the child’s health, education and welfarewelfare– Success depends on communication and Success depends on communication and

cooperationcooperation

• SOLESOLE: One parent has the sole right and : One parent has the sole right and responsibility to make the decisionsresponsibility to make the decisions

GOAL OF CUSTODY GOAL OF CUSTODY AND VISITATION AND VISITATION ORDER:ORDER:• To create a parenting plan that is in the To create a parenting plan that is in the best best

interestinterest of your children: of your children:– Looking at your child’s basic needsLooking at your child’s basic needs

– Looking at your child’s age, personality, experiences Looking at your child’s age, personality, experiences and abilitiesand abilities

– Looking at the nature and amount of contact with Looking at the nature and amount of contact with each parenteach parent

– Providing frequent and consistent time with each Providing frequent and consistent time with each parentparent

– Providing a clear statement of parenting times and Providing a clear statement of parenting times and responsibilitiesresponsibilities

CUSTODY AND CUSTODY AND DOMESTIC VIOLENCEDOMESTIC VIOLENCE

• Rebuttable presumption Rebuttable presumption againstagainst custody to domestic violence custody to domestic violence perpetratorperpetrator

• Violence within the past 5 yearsViolence within the past 5 years

• Sole or joint physical or legal Sole or joint physical or legal custody custody to the perp would be detrimental to the to the perp would be detrimental to the child’s best interest (Fam. C. §3044.)child’s best interest (Fam. C. §3044.)

DRUG OR ALCOHOL DRUG OR ALCOHOL TESTING: CUSTODY & TESTING: CUSTODY & VISITATION ORDERS:VISITATION ORDERS:• Court can order testing if preponderance of Court can order testing if preponderance of

evidence shows “habitual, frequent, or evidence shows “habitual, frequent, or continual use”continual use”

• Can consider prior convictions in past 5 yearsCan consider prior convictions in past 5 years

• Test results are confidential & may be used Test results are confidential & may be used only in custody/visitation hearingonly in custody/visitation hearing

• Positive test alone does not determine Positive test alone does not determine custody (Fam. C. custody (Fam. C. §3041.5)§3041.5)

HOW TO GET YOUR HOW TO GET YOUR FIRST CUSTODY FIRST CUSTODY ORDER:ORDER:• Create a Create a voluntary agreementvoluntary agreement by by

yourselves or through mediation yourselves or through mediation that is signed by a judge, that is signed by a judge, oror

• Go to courtGo to court and have a judge and have a judge decide the custody/visitation issuesdecide the custody/visitation issues

• Either way needs to be based on the Either way needs to be based on the best interestbest interest of the child of the child

FAMILY CUSTODY FAMILY CUSTODY SERVICES MEDIATION:SERVICES MEDIATION:

• FreeFree service through the court service through the court when you have a court casewhen you have a court case

• Uses neutral 3Uses neutral 3rdrd person to help you person to help you and the other parent resolve and the other parent resolve custody/visitation problemscustody/visitation problems

FAMILY CUSTODY FAMILY CUSTODY SERVICES MEDIATION:SERVICES MEDIATION:

• Goals:Goals:– To help communication between the To help communication between the

partiesparties

– To develop a parenting plan agreement To develop a parenting plan agreement that gives both parents close and that gives both parents close and continuing contact or other other levels continuing contact or other other levels of contact with the children, according to of contact with the children, according to what is in the what is in the best interestbest interest of the child of the child

HOW FCS MEDIATION HOW FCS MEDIATION WORKS:WORKS:

• You, the other parent and each child over 5 You, the other parent and each child over 5 years old speaks individually with the years old speaks individually with the mediatormediator

• You and the other parent then meet together You and the other parent then meet together with mediatorwith mediator

• Agreement?Agreement? It’s put in writing, parties sign, It’s put in writing, parties sign, then it’s ordered by the courtthen it’s ordered by the court

• No agreement?No agreement? You’ll need to go to court You’ll need to go to court for the judge to make an order for the judge to make an order

CHANGING A CUSTODY CHANGING A CUSTODY ORDER:ORDER:

• Temporary orders Temporary orders (made by (made by stipulation or “agreement”): Can be stipulation or “agreement”): Can be changed at any time by looking at the changed at any time by looking at the best interestbest interest of the child of the child

• Permanent/final judicial custody Permanent/final judicial custody determinations: Cdeterminations: Can be changedan be changed only ifonly if the court the court first first finds afinds a “ “change change of circumstances” of circumstances” now existsnow exists

““PERMANENT” OR PERMANENT” OR “FINAL” CUSTODY “FINAL” CUSTODY ORDER:ORDER:• Can be the result of the court’s decision Can be the result of the court’s decision

following hearing on the merits, orfollowing hearing on the merits, or

• Can be based on an agreement between Can be based on an agreement between the parties (“stipulation”) the parties (“stipulation”) if if it’s shown it’s shown in writing and by actions that the parties in writing and by actions that the parties have clearly & affirmatively intended a have clearly & affirmatively intended a permanent and final resultpermanent and final result

IF THE ORDER IS IF THE ORDER IS PERMANENT: YOU PERMANENT: YOU NEEDNEED TO SHOWTO SHOW A A “CHANGE IN “CHANGE IN CIRCUMSTANCES”:CIRCUMSTANCES”:• You You first first must prove a must prove a

“material change in “material change in circumstances” to the judge: circumstances” to the judge: How significant facts are How significant facts are different from when the court different from when the court last decided the custody issuelast decided the custody issue

• If you If you can’t prove this:can’t prove this: The The court will court will not hearnot hear your case your case

EXAMPLES OF EXAMPLES OF “CHANGE OF “CHANGE OF CIRCUMSTANCES”:CIRCUMSTANCES”:

• New unfit parentingNew unfit parenting

• New abuseNew abuse

• Frustration of visitation/parental Frustration of visitation/parental alienation (courts can’t agree)alienation (courts can’t agree)

• One parent moving away?One parent moving away?

MOVING AWAY: MOVING AWAY: JOINT JOINT PHYSICAL CUSTODYPHYSICAL CUSTODY CASE: CASE: • Court will use “best interest” of child test Court will use “best interest” of child test

• Moving parent needs to give adequate Moving parent needs to give adequate notice of intention to move away notice of intention to move away

• Both parents need to be able to do Both parents need to be able to do mediation prior to move-awaymediation prior to move-away

• Both parents need to have opportunity Both parents need to have opportunity for formal custody evaluationfor formal custody evaluation

MOVING AWAY: MOVING AWAY: Parent Parent with SOLE PHYSICAL with SOLE PHYSICAL CUSTODYCUSTODY::

• Rebuttable presumption: Rebuttable presumption: “Primary” custodial parent has “Primary” custodial parent has the right to move with the the right to move with the childrenchildren

• To stop To stop the children’s move, left-the children’s move, left-behind parent must show that the behind parent must show that the move would cause “move would cause “detrimentdetriment” to the ” to the childrenchildren

FACTORS TO CONSIDER FACTORS TO CONSIDER AS POSSIBLE AS POSSIBLE “DETRIMENT”:“DETRIMENT”:• Child’s need for stability and continuityChild’s need for stability and continuity

• Distance of the moveDistance of the move

• Children’s ages & community tiesChildren’s ages & community ties

• Children’s relationships with both parentsChildren’s relationships with both parents

• Quality of relationship between parentsQuality of relationship between parents

• Children’s wishes (“sufficient age & capacity”)Children’s wishes (“sufficient age & capacity”)

• Reasons for the moveReasons for the move

• Scope of shared parenting Scope of shared parenting

““DETRIMENT” :DETRIMENT” :

• Ex.: Impact of the move away on the left-Ex.: Impact of the move away on the left-behind parent’s relationship with the behind parent’s relationship with the children (10; 100; 1000; 10,000 miles children (10; 100; 1000; 10,000 miles away)away)

• Ex.: Senior in high schoolEx.: Senior in high school

• Ex.: Developmentally disabled childEx.: Developmentally disabled child

• Ex.: Child with special medical needsEx.: Child with special medical needs

IF DETRIMENT IS FOUND…IF DETRIMENT IS FOUND…

• The court can then look at all the The court can then look at all the relevant factors to determine if a relevant factors to determine if a change of custody is in the child’s change of custody is in the child’s best interestsbest interests

• It’s nevertheless It’s nevertheless very hard to very hard to overcome the custodial parent’s overcome the custodial parent’s presumptive right to movepresumptive right to move

CHANGE IN CHANGE IN VISITATION:VISITATION:

• Do Do notnot need to show a “change in need to show a “change in circumstances”circumstances”

• Can always ask the court to make Can always ask the court to make minor changes in the parenting minor changes in the parenting scheduleschedule

• New plan needs to be in child’s best New plan needs to be in child’s best interestsinterests

TO ESTABLISH OR TO ESTABLISH OR MODIFY CUSTODY OR MODIFY CUSTODY OR VISITATION:VISITATION:

– YOU NEED TO:YOU NEED TO:

– Have or open a court case in Santa Have or open a court case in Santa BarbaraBarbara

– Attend the Children in the Middle Attend the Children in the Middle parenting classparenting class

– Attend Family Custody Services mediationAttend Family Custody Services mediation• Sign an agreement, Sign an agreement, oror

– File papers to get a hearing in courtFile papers to get a hearing in court

NEEDED COURT NEEDED COURT PAPERS:PAPERS:

• Notice of Motion or Order to Show CauseNotice of Motion or Order to Show Cause

• Application for OrderApplication for Order

• DeclarationDeclaration

• Notice of F. C. S. MediationNotice of F. C. S. Mediation

• Notice of Required Attendance at Notice of Required Attendance at Children in the MiddleChildren in the Middle

OTHER OTHER REQUIREMENTS:REQUIREMENTS:

• Type your legal papersType your legal papers

• File the proper documentsFile the proper documents

• Pay your filing fee or get a fee Pay your filing fee or get a fee waiver waiver

• Get the other party properly servedGet the other party properly served

FINAL STEPS:FINAL STEPS:

• Attend the Children in the Middle Attend the Children in the Middle parenting classparenting class

• Attend Family Custody Services Attend Family Custody Services mediationmediation– Sign an agreement, Sign an agreement, oror

• Go to courtGo to court

FAMILY LAW FAMILY LAW FACILITATOR:FACILITATOR:

• Can help with legal papersCan help with legal papers

• Can help with serviceCan help with service

• Can help with filingCan help with filing

• Does Does notnot go to court with you go to court with you

• Does Does not not represent yourepresent you

SO LET’S GET TO SO LET’S GET TO WORK!WORK!