SANTA ROSA FAMILY LAWYER BLOG

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courthouse.jpgFamilies going through a divorce often hear about “family court” and that they may need to go before a “family court judge,” but don’t know what to expect. Does everyone have to appear, even the children? How often do you need to appear? What is family court like, in Sonoma County and in other parts of California? A skilled California family law attorney can help prepare you if you ever need to appear in family court.

How Often Do I Need to Appear in Family Court?

It depends upon the type of dispute with your ex-spouse. If you have disputes over child custody, spousal support, and child support payments, the court will schedule one or more hearings to determine each issue. If neither ex-spouse appears, the hearing will be rescheduled. However, if your ex-spouse requested the hearing and appears, but you don’t, the hearing will take place as scheduled. If the dispute involves child custody, your children may appear in court to testify, but are not required to do so. On the other hand, if you and your spouse prepare an arrangement prior to your divorce and never have another problem, you may never need to appear before a family court judge.

Why is Family Court Separate From the Other Courts?

It is common for superior courts to be separated into civil, criminal, juvenile, family law, and other divisions. Since family law disputes are among the most common, it would bog down the court calendar too much if they were mixed in with other types of disputes, causing lengthy delays for all of the parties involved. Also, family law is a complex, specialized area best left to judges very knowledgeable of the matters. In Sonoma County, the Family Law Division covers divorce, legal separation, parental rights, child support, child custody and visitation, family support, adoptions, and domestic violence restraining orders.

Are There Differences Between the Family Courts?

Every court is slightly different, depending upon the judges appointed and the population of the county. Some courts have more crowded calendars than others. Some judges may be viewed as “fairer” than others. Also, each court has local rules for how to proceed that your attorney should understand thoroughly. That said, all of the courts enforce laws that apply to the entire state.

How Can I Avoid Going to Family Court?

If you and your soon-to-be ex-spouse work out an agreement privately, such as for child custody, you will not need to dispute the issue before a judge, though the court would need to certify. You also have the option of working with a family law mediator to reach a fair agreement. Mediators are available through the courts; they are neutral parties who listen to you and help you consider all options. If you reach an agreement on all matters, you will not need a hearing before a judge.

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Grandparents_visitation_rights_in_California.jpgQ: I am concerned about grandparent visitation rights. I have not been able to visit my grandchildren at all for many months now; do I have any legal rights to visitation with my grandchildren?

A: Yes, but as with most legal matters, it depends on the specific facts of each situation. In a very general sense, Family Code § 3100 grants the court jurisdiction to award visitation rights to any other person (i.e. grandparents, stepparents, etc.) having an interest in the welfare of the child.

Therefore, grandparents may petition the court for visitation with their grandchildren in the following situations:

• When a parent is deceased (Family Code §3102);
• When there is a pending family law proceeding where child custody is already at issue (Family Code §3103);
• The parents are not married to one another, including after dissolution of a marriage (Family Code §3104)
• The parents are married but are living separate and apart on a permanent or indefinite basis and satisfaction of additional statutory requirements (Family Code §3104)

The central theme that is common to all of the above situations is the obligation of the court to make a decision in the best interests of the children, or in this case, the grandchildren.

Grandparents petitioning the court under Family Code §3102 can only do so when a biological parent is deceased.

Family Code §3103, permits grandparents to petition the court for visitation when a family law proceeding is pending and the issue of child custody is already at issue. However, if a petition is filed under this section, any visitation awarded to a grandparent would automatically terminate upon the court issuing a judgment regarding dissolution of marriage or determination of parentage. Thus, a grandparent would then be forced to file a petition under Family Code §3104.

Grandparents bring a petition for visitation under Family Code §3104 when the parents a legally separated, divorced or living separate on a permanent basis. However, grandparents should be aware that the court must make a threshold determination as to whether a bond or relationship exists between the child and the grandparent. This requires the court to strike a balance between the grandparent’s interest in visitation and the right of parents to exercise authority over the child.

Grandparents petitioning the court under Family Code §3104 may have to overcome several rebuttable presumptions, depending on the wishes of the natural parents of the grandchildren. For example, if the natural or adoptive parents of the grandchild agree that the grandparents should not have visitation, a rebuttable presumption arises that it is not in a child’s best interest that the grandparents should not have visitation rights. [See Family Code §3104(e).] However, case law has stated that this presumption does not apply when one of the parents supports the grandparent’s petition for visitation and the other parent opposes it. (See Marriage of Harris 2004, Cal.4th 210.)

Therefore, as you can see, depending on the unique facts and circumstances of each case, grandparents do have the right to have visitation with their grandchildren.

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dad_and_daughter.jpgThis blog has discussed what to do when a visitation dispute arises, but what can you expect from visitation on a regular basis? Visitation is not the same as joint custody. While there may be visitation in a joint custody situation when one parent has sole physical custody, visitation is frequently awarded when one parent has both physical and legal custody of the children. The court believes that it is in the children’s best interest for the other parent to see them regularly. If you find yourself in a situation where you or your ex-spouse has visitation rights, find out more from a California family law attorney about what these rights involve.

Do I Get to Decide When and Where I Meet the Children?

Usually the custodial parent has the power to decide the time and place of the non-custodial parent’s visit with the children. However, since it tends to be the source of many ugly disputes, sometimes resulting in the non-custodial parent getting little contact with the children, courts prefer that you and your ex-spouse create a parenting plan ahead of time that outlines visitation rights. If this does not succeed, the parent being denied visitation can petition the court, which may then order mandatory visitation rights.

Do I Still Get to Make Decisions About My Children’s Upbringing?

If you are a non-custodial parent with visitation rights, you do not have the legal authority to make decisions about your children concerning issues such as school, religion, medicine. However, a good relationship with your ex-spouse might allow you to give feedback about the children’s needs and have it be factored in. If you are a parent with legal, but not physical, custody, you have the legal authority to make decisions about your children. More courts are moving away from granting sole legal and physical custody to one parent, allowing more cases in which both parents have the legal authority to make decisions about the children.

If My Ex-Spouse Does Not Appear to be Treating the Children Well, Can I Petition to Modify the Custody Arrangement?

Yes, you can petition the court for a modified custody arrangement. Be prepared to provided documented evidence of your ex-spouse’s lack of care. Also, you may have a more difficult time establishing that you deserve custody if you deliberately left the family, leaving your children with the other parent.

What if My Ex-Spouse Wants to Move?

California courts will allow the spouse to move if he or she has a good reason. However, they might deny it if the move would be too detrimental to the child, or the custodial parent was moving just to deny the other parent visitation rights.

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