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CALIFORNIA CHILD CUSTODY AND VISITATION - SUMMARY OF STATUTES
(provided by Glen Rabenn, Esq.)
REFERENCES TO LEGAL AND PHYSICAL CUSTODY
AMENDED: Family Code 3020, 3021, 3120
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EXISTING: It is the stated intent of the Legislature that the health, safety and welfare of
children should be the court's primary concern in determining custody or
visitation issues. The provisions of Division 8, Part 2 of the Family Code are to
apply to actions for exclusive custody, domestic violence actions, and custody
proceedings filed by the district attorney.
NEW: The term phrase "physical and legal custody" has been inserted in place of the word "custody."
AMENDED: Family Code 3011
ADDED: Family Code 3046
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EXISTING: The family code sets forth certain factors that must be considered by a court in
determining child custody/visitation issues.
NEW: If a party is absent or relocates from the family residence, the court is not to consider the absence or relocation as a factor in determining custody or visitation in either of the following circumstances:
(1) The absence or relocation is of short duration and the court finds that, during the period of absence or relocation, the party has demonstrated an interest in maintaining custody or visitation, the party maintains, or makes reasonable efforts to maintain, regular contact with the child, and the party's behavior demonstrates no intent to abandon the child.
(2) The party is absent or relocates because of an act or acts of actual or threatened domestic or family violence by the other party.
In determining if the absent parent has maintained regular contact with the child, the court may consider attempts by custodial parent to interfere with the other parent's contact with the child. The provisions of this new section do not apply to cases where the absent parent has been excluded from the dwelling of the other party or the child, or otherwise enjoining the party from assault or harassment against the other party or the child. In addition, the section does not apply to a parent who abandons a child as provided in Family Code 7822.
COMMENT: For many years, family law attorneys have been advising their clients that they should not leave the family residence if they hope to obtain reasonable child custody/visitation orders. This inevitably caused high levels of stress to be perpetuated in families and often led to domestic violence. Parents were forced to decide between staying or leaving, with significant consequences attached to either course of action. This legislation should ease the minds of many parents who are faced with this dilemma.
On the other hand, absent parents must now deal with the concept of "abandonment, " which has been restored to the jargon of family law practice. The term has continued to be relevant in step-parent adoption cases, where the Court must first find that the absent parent has consented to the adoption or has abandoned the child as defined by Family Code 7822. Under that section, a parent will be found to have abandoned the child if the parent has been absent for one year and either not supported the child or has not communicated with the child, with the intent to abandon the child. Attorneys representing absent parents in family law cases should counsel them to provide support and maintain contact with the child if they want to minimize the custodial parent's use of the abandonment card.
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See Procedure Section
AMENDED: Family Code 3111
ADDED: Family Code 3110
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EXISTING: The court can appoint an investigator to conduct a child custody evaluation. Other
than domestic violence training, no standards have been established for the
training of evaluators.
NEW: By January 1, 2002, the Judicial Council is to formulate a statewide rule of court that establishes education, experience, and training requirements for all child custody evaluators appointed pursuant to Family Code 3110, Evidence Code 730, or Code of Civil Procedure 2032. One the rule is established, all evaluators will be required to declare under penalty of perjury, on a Judicial Council form, that he or she meets all of the education, experience, and training requirements specified in the rule and, if applicable, possesses a license in good standing. The education, experience, and training requirements to be specified for court-connected evaluators are to include knowledge of the psychological and developmental needs of children and parent-child relationships.
Under the new rule, all evaluators will be required to utilize comparable interview, assessment, and testing procedures for all parties that are consistent with generally accepted clinical, forensic, scientific, diagnostic, or medical standards. Evaluators will further be required to inform each adult party of the purpose, nature, and method of the evaluation.
The rule may allow courts to permit the parties to stipulate to an evaluator of their choosing with the approval of the court under the circumstances set forth in subdivision (d). The rule may require courts to provide general information about how parties can contact qualified child custody evaluators in their county.
In addition to the education, experience, and training requirements established by the Judicial Council, commencing January 1, 2005, no person shall be a child custody evaluator unless the person is:
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(1) Either is a board certified psychiatrist or has completed a residency in
psychiatry; or.
(2) A psychologist; or
(3) A marriage and family therapist; or
(4) A clinical social worker; or
(5) A court-connected evaluator who has been certified by the court as meeting all of the qualifications for court-connected evaluators as specified by the Judicial Council.
AMENDED: Family Code 3400, et. seq.
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EXISTING: Under the Uniform Child Custody Jurisdiction act [UCCJA], a California court
has jurisdiction to make a child custody determination, as defined, by initial or
modification decree, in any of specified situations, including that it is in the best
interest of a child who has specified connections with this state, or that the child is
physically present in the state and it is necessary in an emergency to protect the
child for certain reasons. A court must decline to exercise its jurisdiction if it
determines that it is an inconvenient forum and a court in another state is a more
appropriate forum, or if the petitioner has wrongfully taken the child from another
state or engaged in similar reprehensible conduct. California courts are required to
recognize and enforce out-of-state child custody decrees subject to specified
conditions. Superior court clerks are required to maintain a registry of those
custody decrees and other documents by superior court clerks.
NEW: California has incorporated the Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA], which was adopted by the National Conference of Commissioners on Uniform State Laws in 1997. In its notes to the UCCJEA, the commissioners set forth two primary purposes behind the new act:
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(1) To revise the law on child custody jurisdiction in light of federal
enactments and thirty years of contradictory case law, and
(2) To provide for an expedited process to enforce interstate child custody and visitation determinations.
Providing for home state priority: The Parental Kidnaping Prevention Act, [PKPA] provides for full faith and credit only when the custody determination is made by the home State. Other state custody determinations are not entitled to PKPA enforcement unless there is no home State. The UCCJA, however, specifically authorizes four independent bases of jurisdiction without prioritization. Under the UCCJA a significant-connection custody determination may have to be enforced even if it would be denied enforcement under the PKPA. The UCCJEA prioritizes home state jurisdiction.
A clarification of emergency jurisdiction: The new act provides various "what-if's" to deal with cases in which orders have already been made in other jurisdictions, and where such orders have not been made. The legislature states that, in making these changes, intends that the grounds on which a court may exercise temporary emergency jurisdiction be expanded.
Providing for exclusive continuing jurisdiction for the decree granting State: The UCCJA did not clearly state that the decree granting state retained exclusive jurisdiction to modify that decree. This has resulted in major problems with regard to conflicting custody decrees and determining whether a state has relinquished its jurisdiction. These issues are addressed in Family Code 3410, 3422, and 3426.
What custody proceedings are covered: There is no general agreement whether the UCCJA applies to neglect, abuse, dependency, wardship, guardianship, termination of parental rights, adoption and protection from domestic violence proceedings. To resolve this ambiguity, the UCCJEA includes a sweeping definition that includes virtually all cases involving custody of or visitation with a child as a " child custody proceeding." (Family Code 3402(c))
Role of "Best Interests": The use of the term "best interest" in the jurisdictional sections of the UCCJA often served as an invitation to address the merits of the custody dispute in the jurisdictional determination, to the point where "best interests" considerations would override jurisdictional determinations or provide an additional jurisdictional basis. The UCCJEA eliminates the term "best interests" in order to establish clarity between the jurisdictional standards and the substantive standards relating to custody and visitation of children.
Applicability to Native Americans: It is currently unclear whether Native American tribes are intended to be included under the definition of "State." Family Code 3104 makes it clear that the Indian Child Welfare Act takes precedence over the UCCJEA.
AMENDED: Family Code 3201-3204
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EXISTING: The Judicial Council is required to develop standards for supervised visitation
providers.
NEW: Any supervised visitation maintained or imposed by the court shall be administered in accordance with Section 26.2 of the California Standards of Judicial Administration recommended by the Judicial Council. The family law division of the superior court may contract with eligible providers of supervised visitation and exchange services, education, and group counseling to provide visitation services.
AMENDED: Family Code 3044.
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EXISTING: Existing law provides that custody should be granted according to the best interest
of the child in a specified order of preference in which preference is first given to
granting custody to both parents jointly or to either parent.
NEW: There is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence, as defined, against the other party seeking custody of the child or against the child or the child's siblings within the previous 5 years is detrimental to the best interest of the child. The presumption does not apply in cases in which both parents are perpetrators of domestic violence.
The statute sets forth the following factors that the court must consider in determining whether the evidence submitted by the perpetrator is sufficient to overcome the presumption:
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(1) Whether the perpetrator of domestic violence has demonstrated that giving
sole or joint physical or legal custody of a child to the perpetrator is in the best
interest of the child.
(2) Whether the perpetrator has successfully completed a batterer's treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.
(3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate.
(4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate.
(5) If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions.
(6) Whether the perpetrator of domestic violence has committed any further acts of domestic violence.
Glen Rabenn, Attorney at Law located at
http://www.divorcenet.com/ca/rabenn.html
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