San Diego Child Custody Attorney
Child custody and visitation proceedings are often the most difficult of all family law matters for the litigants, attorneys, and judges. Unfortunately, while our legal system tries and makes the process the most “fair” it can be and focuses on the best interests of the child, there is often a disconnect between a family law judge and the parties and children involved. This is through no fault of the judge, of course. The courts have too many cases on calendar and they only receive information that is presented to them during the course of the custody litigation matter. It’s not like the judge or commissioner will go and visit the homes of each parent, interact with the children, and so forth.
As a result, it is imperative that you have expert legal representation that is familiar with the best way to get this important information to the San Diego family court judge assigned to your case. Often, information must be presented in a concise and relevant manner. Further, your child custody attorney should have significant experience in dealing with neutral experts such as Family Court Services mediators, court appointed custody evaluators under Family Code 3111 and Evidence Code 730, and so forth. Neutral experts hold substantial weight and credibility in the court’s eyes, and ensuring that their information and testimony is helpful to your case is crucial.
Our attorneys offer a free, private consultation to discuss your San Diego child custody case. We will talk with you in non-legal language and describe the process and your options. Clients always feel better after meeting with our attorneys because they understand the process and their options.
Legal Custody and Physical Custody: What is the difference?
The difference between legal custody and physical custody is relatively easy to explain. Legal custody is the right to make decisions about a child’s health, safety, welfare, education, religion, care, medical decisions, where the child will attend daycare and school, and so forth. Usually, parties share “joint” legal custody and they are required to work together to make decisions that are in the child’s best interest. In some cases, where it is shown through evidence that a parent has not made a decision or decisions in a specific issue, such as regarding education or healthcare, the court will grant joint legal custody but exclude a particular set of decisions, which we be made by the other parent only.
Physical custody is the actual time that a parent physically has a child in his or her care. Many times there is “joint” physical custody and other times one parent has “primary” physical custody (called “sole” physical custody) and the other parent has visitation. Parents are free to agree upon whatever custody schedule they believe is in their child’s best interest. If they can’t agree, parents attend FCS mediation and then the judge makes the decision when a child will be in each parent’s care.
Are the best interests of my child considered by the court in custody orders?
Yes, in the fact the primary concern the court has in any child custody and visitation proceeding is the best interests of the children. What does “best interest of the children” mean? Family Code 3011 is on point. The court is obligated to consider whether either party has a drug or alcohol problem, the health, safety and welfare of the child, the history of abuse by either parent, and the nature and amount of contact by each parent. Also as part of the “best interests” analysis, the court will look to grant “joint” custody and if not joint custody, then the court is obligated to place the child with the parent most likely to facilitate the other parent’s relationship with the child, all else being equal. It is also considered in a child’s best interests to have “frequent and continuing contact” with both parents.
The splitting or separating of siblings:
There is a presumption that splitting or separating siblings from each other for a custody order is not in their best interest. The case of Marriage of Williams is directly on point and is the prevailing authority on this issue. Absent some very compelling reason to separate siblings, the court will not do so.
Will the family court interview my child in a child custody litigation case?
The answer to this question is maybe. There are a number of important variables that determine whether a child will be involved, in any manner, in a court case including whether they will be “interviewed” by the court. The most important determining factor of whether a child will talk to a family law judge, or any other court personnel for that matter, is the child’s age. Young children are not interviewed by the Family Court Services recommending counselor in San Diego County. Children that are able to articulate certain facts such as their relationship with each parent, their life at each parent’s home, their desires regarding custody, and so forth may or may not be interviewed. Children that are fourteen years old or older that express a desire to speak to the court about their wishes will be permitted to do so, unless the court determines that it would not be in the child’s best interests to even express those wishes. Most often, if children are interviewed they are interviewed by an FCS recommending counselor. In rare circumstances, children testify in court often in the judge’s chambers privately.
What is Family Court Services custody mediation?
Family Court Services (FCS) recommending counseling in San Diego Family Court is the mandatory “mediation” process that California law requires before a hearing on the issue of child custody and visitation is heard by the court. In San Diego, parties will be scheduled to attend FCS mediation before their hearing on the issue of custody. During the mediation session, the FCS counselor will interview both parties and try to help the parties reach an agreement regarding only the issue of custody and visitation. If the parties do not reach an agreement at Family Court Services, the counselor then writes a written recommendation that is provided to the judge for the upcoming hearing. Because of this fact, FCS mediation counseling is extremely important. You must be well prepared.
What is the UCCJEA and why is it important?
The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) is very important anytime parents live in different states, when an order of any kind was issued in another state, when one parent wants to move away to another state, when a party wishes to modify an out-of-state custody order, when a parent wants to register an out-of-state custody order, when a parent has absconded with a child either to or from California, and so on. The UCCJEA is the “uniform” set of laws that nearly every state within the United States has adopted as its state law that deals with when and where child custody cases will take place. These set of laws are extremely difficult to understand and apply.
Common scenarios where the UCCJEA applies in California:
- When parents divorce in another state and one parent moves to California. Their divorce judgment will contain custody orders. After one parent moves with the child to California, he or she may wish to “register” the order in California.
- Out of state child custody and visitation orders can be modified under certain situations in California.
- When both parents move from another state to California, and the child has been in California for at least six months, California will have jurisdiction to modify the custody order.
The concept of the child’s home state is critical to the analysis of what state has the power to enter an initial child custody order or to modify an existing child custody order. The home state means “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.” (See Family Code 3402). In basic terms, the home state is the state where the following exist:
- Where a child has lived for at least six months prior to the filing of the case; or
- If the child is less than 6 months old, it is the state where the child was born
The family courts in California and San Diego County will have jurisdiction to make a temporary, emergency order even if the courts in California do not have the jurisdiction (i.e. power) to “permanently” modify another state’s judgment for custody. In these situations, if a child is found within California state lines and a parent requests (by filing an appropriate petition or domestic violence temporary restraining order, for example) that the San Diego family court enter emergency orders, the court may do so under certain circumstances. Specifically, the court may enter an order temporarily modifying another’s state’s custody orders or enter an emergency order even though California is not the “home state” in the following situations:
- The child has been abandoned in California; or
- The child may be subjected to mistreatment or abuse
If there are simultaneous child custody cases in different states, the family court judge is required to have a conference call with the judicial assignment assigned to the case in the other state to determine which court will maintain the power over the case.
Finally, even if the family court in California may have jurisdiction to hear a particular child custody case, the court can decline jurisdiction based on the theory of an inconvenient forum. There are certain restrictions to this, of course, including another state must want to accept the case. The reason that the court in San Diego, California may wish to decline the case may be due to the fact that all or most of the evidence applicable to the case is another state, or it would be extremely inconvenient for the important witnesses in a case (for example, experts, counselors and therapists, etc.) to travel to California to testify.
Our attorneys also have experience in Hague petitions where the United States and another county, which is a “Hague signatory,” are involved.
If you find yourself in a situation where a parent kidnaps a child, absconds with a child, or flees with a child to another state, country or county within California, be sure to contact our firm to protect your rights to your child. Click here for more information from the San Diego County District Attorney’s Office Child Abduction Unit and how they deal with child abductions.
How Do I Obtain Or Prevent A Move-Away:
A parent’s request to relocate outside the County of San Diego, the State of California or the United States is known as a move-away request. In every move-away request, the Court will perform a traditional best interest’s analysis. The factors considered by the court will depend if the proposed move-away is an initial custody determination (i.e. prior to a judgment being entered) or post-judgment (i.e. after a judgment) and custody orders have been entered.
A parent requesting a move-away or a parent seeking to block the relocation should be prepared to provide the following information to the court concerning the move-away:
- The child’s stability and continuity in the current custody arrangement;
- The relocating parent’s level of attachment to the child;
- The distance of the relocation;
- The financial impact on each parent;
- The child’s age;
- The child’s relationship with both parents;
- The relationship between the parents;
- The child’s preference;
- The reasons for the relocation;
- The non-payment of support by the stay-behind parent;
- Impact on each parent’s mental stability if the relocation is permitted or denied by the court;
- Availability of special education and medical facilities for a child in need of such accommodations;
- Parental animosity and communications between the parents; and
- Any other relevant factors unique to the case
In a move-away case most requests end up in going to a trial where each parent, and possibly experts, testify to provide information about the facts mentioned above. Move-away requests should be carefully planned and presented to the court. Consult an attorney at Wilkinson & Finkbeiner if you find yourself involved in such a case
Minor’s counsel are attorneys appointed by the court to represent the interests of a child. They do not represent either parent, but only the child. In recent years, the role of minor’s counsel in family law cases has deteriorated to the point that their primary function now is to merely report to the court, in the form of a written statement, the background of the parties and children, the relationships between the parents and children, and report the children’s desires or wishes. In past years, minor’s counsel would report to the court extensively about the parties, the children, the homes of the parties, the relationship with each parent and so forth, and then make a written recommendation about which parent, or the parents jointly, should have custody. Minor’s counsel no longer make such recommendations.
The family law courts have the ability to restrict one or both parent’s visitation to supervised visits only. The reasons for supervised visitation orders are that a parent poses a significant danger to the child and therefore must be supervised by some third party. Depending on the nature of the danger involved, the court may order supervised visits by friends or family members, or in more severe cases may order the supervision to be monitored by a professional, or in the most serious cases the supervised visits take place at a professional facility.
Practical Advice For Parents In Custody Cases:
Many custody cases involve miscommunications between the parents, the amount of time a child spends with a parent and the level of involvement of a parent with the child. Keep a log of significant dates, times, and transactions between each parent and child. Maintaining records of emails, texts or phone records as well as gift receipts and cards is always a good idea if you believe a dispute will arise in the future. In the event the other parent violates a court order, log a violation with the San Diego County District Attorney’s Office by clicking here.
Our child custody and visitation attorneys at Wilkinson & Finkbeiner, LLP, specialize in child custody and visitation matters. We represent mothers, fathers, grandparents, and non-parents in San Diego child custody and child visitation proceedings. We understand that custody and visitation issues can be the most stressful and contested portion of any case.
Our aggressive custody attorneys will strive to ensure we achieve our clients goals. To that end, we will also do our best to preserve, and hopefully even improve, the relationship between our client and the other parent because ultimately, both parents will need to cooperate and work together to co-parent their child or children together.
“If you are a father battling over custody of your child, and you need a lawyer who will really fight for you, I recommend David Wilkinson (Wilkinson & Finkbeiner in San Diego, CA). I found David to be experienced and professional, yet supportive and easy to talk to. From the beginning David understood how important my case was to me, and he became 100% committed to getting me the positive outcome I needed.”