A client who did not have an attorney during her divorce last year focused her intent in getting sole legal and physical custody of their very young child. In essence, she waived her rights to a much higher child and spousal support along with community asset division and in exchange she would have sole custody. Moreover, in the Judgment which was prepared by her husband’s attorney, it set forth that custody can not be modified unless there are two conditions: domestic violence or imminent danger/risk to the child.
However, she was not advised that notwithstanding the narrow conditions custody can be modified, she did not know that the court always retains jurisdiction of custody matters so long as the child is a minor. I am now representing her since the father now wants to modify the custody/visitation issues even though the two conditions do not exist. She wants to live abroad in Europe but father disagrees to this request.
In making a child custody order between parents, the court must also grant the other (noncustodial parent) “reasonable visitation rights” unless it is shown that visitation would be “detrimental to the best interest of the child” [CA. Family Code (FC) § 3100(a)]
Because of the importance placed on “frequent and continuing contact” with both parents, an order withholding a parent’s visitation privileges can only be issued upon a finding that any form of visitation would be detrimental to the child.
The court has broad discretion in defining a parent’s “reasonable visitation” rights and establishing a visitation schedule. Subject to a few statutory limitations, the basic tenet is the child’s best interest.
In all cases, the clear policy is to assure the child’s health, safety and welfare and to the extent possible for “frequent and continuing contact with both parents.” The continuing contact can be restrained by looking at factors cited in CA. FC 3011. Aside from this, the court considers the practical facts of the case, child’s age, maturity, special needs, the parent’s proximity to the each other and if appropriate, the child’s preference.
Visitation is not tied to payment of child support. Parent visitation rights must be tried independently of other issues before the court. A visitation order may not be tied to or conditioned upon the payment of child support and has no bearing on whether parental contact would be detrimental to the child.
A parent’s absence or relocation from the family residence cannot be considered in determining visitation (or custody) provided it was in short duration and during that time, the parent showed interest in maintaining custody or visitation. Additionally, the court will review whether the parent made reasonable efforts to have regular contact with the child and demonstrated no intent to abandon the child.
Visitation rights cannot be restricted solely on the basis of a parent’s “unconventional lifestyle,” the parties’ “opposing moral positions” or “outright condemnation of one parent’s beliefs by the other parent’s religion unless there is evidence these factors are detrimental to the child.
The right to make decisions regarding the child’s upbringing is with the parent who is granted legal custody. The decision-making powers do not shift between parents during visitation periods unless they have “joint” legal custody. [FC §3006 for sole and FC§3003 for joint legal custody]
Implementing a visitation order depends upon the custodial parent’s ability to make the child available for visitation. During a child’s younger years, the custodial parent has sufficient control to compel the child to visit the other parent pursuant to the court order. The parent’s failure to do so could be punishable by contempt.
But the rule is different with teenagers. Technically, teenage children remain under their parent’s control. However, if a teenage child refuses to visit with the noncustodial parent, that parent is left without a remedy. In Coursey v. Superior Court (1987) 194 Cal.App.3d 147 – court erred in holding mother in contempt for violation of visitation regarding a 14 year old child because there was no showing that mother had the ability to compel child to visit.
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Article originally published in: http://attycastaneda.com/child-custody-visitation-basics/
- Published in Atty. Carina Castaneda