Child custody and visitation, whether brought as a stand-along proceeding or included in a dissolution or parentage proceeding, is a decision that will be made by a judge, or through an agreement between the parents, as to who will have primary responsibility for the child(ren) and when each parent will have parenting time. In an initial court proceeding on custody and visitation, the court will primarily focus on the best interest of the children in deciding what the custody arrangement should be. The court will focus on the health, welfare and safety of the child(ren), whether they have been subject to abuse by either parent or whether they have witnessed it, and whether there is a history of drug or alcohol abuse by either parent.
All things considered, it is the policy of the State of California that children have frequent and continuing contact with both parents. The court will decide legal custody, the power to make decisions about health, education and welfare of a child, and physical custody, the timeshare each parent has with the child. The court may order (or the parties may agree to) sole legal custody for one parent or joint legal custody. Likewise, for physical custody, the court will decide if one parent will have sole physical custody or whether the parties will share the time with the children equally or close to it.
In subsequent proceedings addressing a child custody arrangement or order that was intended to be final, the moving party will have to demonstrate that there has been a significant change in circumstances that would merit disturbing the continuity and stability afforded the children with the permanent order that is currently in place.
In matters involving child custody and visitation, the parties are sent to a mandatory mediation at Family Court Services in advance of any hearing. A recommendation on custody and visitation will be prepared by the mediator and filed with the court before the hearing.
Cases where one parent wants to move away from an area are some of the most sensitive custody matters heard in family court. They are highly contested and often highly complex matters.
There are various considerations when a move-away case is addressed. An attorney must review and analyze the current custody arrangement and whether it is such that a custodial parent, based on the custody order and timeshare, has a presumptive right to move. If so, the burden shifts to the party opposing the move to show that there will be a significant detriment to the child if they were to move, and that a change in custody to the non-moving parent is in the best interest of the child. Factors from a California Supreme Court Case, In re Marriage of LaMusga, are considered in this analysis.
What about situations when the parties share joint legal and physical custody? In those cases, the court looks at the custody issue de novo, anew, to determine what custodial arrangement will be best for the child and with the assumption that the party seeking to move will do so even if the court does not permit the parent to take the child with him or her.
Depending on the distance of the move, and the outcome of the case, a child will have a significantly reduced time- share with one parent.
These cases involve a substantial amount of time and the moving party should plan months in advance of the intended move so that the request for order (RFO) can be timely filed. When it is filed, the court will set mediation date to address the move-away request, and the parties are required to attend mediation in advance of the first hearing on the matter. The matter will likely be set for an evidentiary hearing the time for which will depending on nature and extent of the evidence and the number of witnesses the parties intend to call.
Custody and visitation matters, and especially cases where one parent is moving and desires to take the child(ren), can be complex and emotional. Contact Attorney Rizzo to discuss your child custody and visitation matter and any questions or concerns you may have.