Articles Posted in Children

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Bode Miller and his ex-girlfriend are engaged in a unique custody dispute that could have major consequences for this area of law. Many Americans watched skier Bode Miller compete in the Sochi Winter Olympics over the past two weeks, as he capped off his legendary career with a bronze medal in the Super G event. He also generated a great deal of sympathy from viewers around the world when he broke down in tears during his post-race interview. But a custody dispute story involving Miller has made headlines in the world of family law, even as it was swept aside during the television coverage of the Olympics.

Skier The conflict centers on Miller’s ex-girlfriend’s decision to move to another state while she was pregnant with Miller’s child, but after they had broken up. The issue is whether she had a right to do this and what implications her decision has for deciding custody of the child.

Custody Dispute initiated in Moving From California to New York

Miller, who lives in southern California, dated the mother of his child for a few months in 2012. Before they broke up, she became pregnant with his son. In November 2012, Miller (who had married another woman by this point) filed a “Petition to Establish Parental Relationship” in California. The next month, while she was seven months pregnant, the mother moved to New York in order to attend Columbia University.

Two days after the baby was born in February 2013, the mother went to a New York Family Court to petition for custody. Under New York law, the child’s “home state” has jurisdiction over any custody case that arises. However, the family judge ruled that the case should be sent to California, accusing the mother of moving to New York for the purpose of finding a more friendly court. The California family court then awarded custody to Miller and his wife.

The mother appealed the New York decision, and a five-judge panel ruled in November 2013 that her rights had been violated and that New York should have jurisdiction over the case. Since then, California and New York have been engaged in a legal dispute over jurisdiction, with the parties caught in the middle. The baby has mostly remained with Miller and his wife, with the mother getting occasional visitation.

Outcome Could Shape Future Custody Disputes

Most likely, the courts will eventually determine that New York should have jurisdiction, since the mother moved there before the baby was born. If Miller wants to contest custody, he may have to do so in New York courts. However, that will still leave the thornier issue of how to deal with custody when, after a baby’s birth, one parent wants to move far away and the other wants to play an active role in the child’s life. Perhaps this case will provide some clarity for these disputes moving forward.

What to Do if You Are Involved in a Custody Dispute

If you are involved in a custody dispute with a former partner, you should contact a family law attorney immediately. An attorney can review the facts of your case and provide you with advice and guidance regarding your concerns.

RELATED BLOG POSTS:

Child Custody Basics

New California Child Custody Legislation Allows More Than Two Individuals to be Recognized as a Child’s Legal Parents

Photo Credit: ClickFlashPhotos / Nicki Varkevisser via Compfight cc

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If a separating couple can agree on a parenting plan, the court will usually issue an order reflecting those terms.

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When a married couple with children decides to separate, one of the first steps they should take is to try and reach an agreement regarding how their children will be cared for after the separation occurs. In most cases, if the separating couple can agree on a parenting plan the court will issue a court order reflecting those terms.
The court will make a decision regarding custody and visitation when separating parents cannot reach an agreement.
When a separating couple cannot agree on a parenting plan, a judge will issue a decision regarding custody and visitation. This may take some time, because certain criteria will need to be met before a decision is issued. For example, separating parents are required to meet with a court appointed counselor. In some instances, the counselor will provide the judge with a recommendation regarding the appropriate child custody and visitation arrangement. In addition, the judge may order that some or all family members undergo psychological evaluations.

However, if there are immediate concerns that need to be addressed, the court will issue a temporary order. Circumstances that may require a temporary order include when one parent is moving to another jurisdiction and wants to take the children along or when parents cannot agree on what school their children should attend.
Before issuing a final custody and visitation determination, the judge will consider what arrangement is in the best interest of the child. This determination will be made based on the information gathered through evaluations and other information submitted to the court. In addition, if the children involved are, “of sufficient age and capacity to reason” the court may consider their wishes regarding custody and visitation.
Typically, custody will be awarded to one or both parents. However, if the court determines that awarding custody to either parent would be detrimental or harmful to the child, they may award custody to another adult. There are several types of custody that the court may consider:
Joint Legal Custody: This gives both parents the right and obligation to make significant decisions regarding their children’s health, welfare, and education.
Sole Legal Custody: This give one parent the right and obligation to make significant decisions regarding the children’s health, welfare, and education.
Joint Physical Custody: Children live with both parents, although not necessarily for equal amounts of time.
Sole Physical Custody: Children live with one parent and the other parent has visitation rights.

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Earlier this month, Governor Jerry Brown signed landmark child custody legislation that expands the authority of California family law courts when it comes to making child custody determinations. The new child custody legislation allows California family law courts to recognize three or more individuals as the legal parents of a child. Accordingly, a court’s child custody orders can require more than two individuals to share physical and/or financial responsibility for raising a child.

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Legislation was authored by Sen. Leno in order to ensure that California law reflected current family dynamics.
Senator Mark Leno (D-San Francisco) authored the legislation in order to ensure that California’s family law provisions reflected changes in the way families are structured within the State. Specifically, to recognize the increasing number of same sex couples having children with a biological parents of the opposite sex.
In support of the measure, Senator Leno explained that California’s family law courts should be able to issue child custody rulings which recognize circumstances where multiple individuals act in a parental capacity by providing support and care for a child. He when on to explain that providing judges with the authority to issue rulings that would allow more than two parents to share custody of a child will help prevent situations where a child is forced to deal with separation from an individual they have always considered a parent and is therefore in their best interest.
Senator Leno authored the bill after a 2011 court decision, which sent the daughter of a same sex couple to foster care when both women lost custody. The girl was sent to foster care despite the fact that her biological father wanted to assume custody. The court reasoned that the biological father did not have parental rights.
Conservative groups opposed the legislation, viewing it as an attack on traditional families.
The measure was opposed by a number of conservative organizations who deemed the new legislation as an attack on traditional families. Brad Dacus, president of the Pacific Justice Institute, responded to news of Gov. Brown signing the new legislation by stating that he was disappointed in the decision. He argues that the legislation was a mistake because it will lead to more complicated family law proceedings that will be detrimental to children in the long run.
Last year, Gov. Brown vetoed a bill similar to the one signed into law on Friday. It is unclear what changed the Governor’s mind on the issue.

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Primary custody being sought by Usher Raymond’s ex-wife following the near drowning of Grammy winner Usher Raymond’s 5 year old son. Usher Raymond’s ex-wife Tameka Foster Raymond sought and was granted an emergency hearing in order to request custody of the former couple’s two children. The couple were married in 2007 and divorced two years later. Following a lengthy child custody battle, Mr. Raymond was awarded primary custody of both children.

The former couple’s son nearly drowned after being caught in a pool drain.

According to police reports, the couple’s son fell into the pool and was caught in the pool’s drain while under the supervision of Mr. Raymond’s aunt. A housekeeper tried to free the boy from the drain, but was unsuccessful. A contractor who was working on Mr. Raymond’s property was finally able to free Mr. Raymond’s son from the drain and perform CPR in order to revive the boy.

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The boy’s mother alleged that the children are not adequately supervised under Mr. Raymond’s care and that he does not keep her informed of who is taking care of the children when he is away.

Ms. Raymond’s request alleged that her son suffered from a near-death accident after being left unsupervised at the singer’s home while he was out of town. During the court hearing, which was held at the Fulton County Superior Court in Atlanta, Georgia, both parents took the stand and testified before the presiding judge. Ms. Raymond testified that her ex-husband does not keep her informed of the children’s whereabouts and whose care they are in when Mr. Raymond is out of town. However, testimony revealed that Mr. Raymond’s aunt was sitting poolside watching both children play in the pool. In addition, Mr. Raymond was not out of town, but rather at a music studio just an exit away.

Ms. Raymond’s request was denied, but the Court advised Mr. Raymond to keep her informed of who is taking care of the children when he is away.

The Court denied Ms. Raymond’s request for temporary primary custody, as well as decision making authority. The Judge reasoned that the testimony and other evidence submitted to the Court did not suggest that anything could have been done to prevent the accident. However, the Judge did advise Mr. Raymond to keep his ex-wife abreast of his whereabouts and who is supervising the children when they are not in his care.

California courts allow individuals to make emergency requests regarding visitation and custody orders in certain circumstances.

California also allows individuals to make an emergency request to the court to issue new custody or visitation orders or to change existing custody or visitation orders. This may be done in situations in which circumstances have occurred or may occur, such that it is in the best interest of the child for the court to modify their existing custody or visitation arrangements.

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Surprised.jpgPresident Obama gave a Father’s Day speech in which he called for reforming child custody laws in order to allow fathers to become more engaged in their children’s lives. During divorce proceedings, fathers often feel disadvantaged when it comes to courts’ child custody determinations. These feelings are not always unwarranted.

Mothers receive primary custody in 70 percent of divorce cases.

Until the 1970’s, courts generally favored the mother when determining child custody arrangements. However, since then, the standard for determining child custody has been changed such that the ruling is based on what is in the best interest of the children. Despite this shift, the National Center for Health Statistics estimates that mothers are awarded primary custody of their children in approximately 70 percent of divorce cases.

Fathers often face hurdles such as, false accusations of child abuse or neglect. Moreover, during child custody proceedings, fathers often face false accusations of child abuse or neglect which they are forced to defend themselves against. Such allegations result in both emotional and financial strain. Defending against false accusations of child abuse or neglect can result in prolonged legal proceedings. In addition, fathers facing false accusations of child abuse or neglect are subject to limited and supervised visitation with their children.

In determining what is in the best interest of the child, courts consider which parent has the greatest involvement in the children’s day to day activities.

In order to determine what custody arrangement will allow the children to maintain the greatest level of normalcy during the divorce transition and thereafter. In addition to looking at whether a parent is financially capable of taking care of the children, courts will also look to see which parent had the greatest involvement in their children’s day to day activities.

Courts consider a number of factors when assessing each parent’s role in their children’s day to day activities and who served as the primary caretaker. These factors include: which parents helped the children get ready for school, which parents prepared meals for the children, which parent assisted the children with their homework, and which parent accompanied the children to their various activities.

California law requires couples to participate in mediation, providing an opportunity for parents to come up with their own agreement with the help of a mediator and their attorneys.

Under California law, parents are required to participate in mediation before a divorce proceeding can take place. This serves as an opportunity for parents to address child custody concerns and come up with a custody arrangement which they can both agree on with the help of a mediator, rather than having a custody arrangement imposed on their family by the courts.

Related Blog Posts:
The Pitfalls of Relying on News Sources for Divorce Guidance
Mental Illness Can Lead to Termination of Parental Rights

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Termination of Parental Rights and Mental Illness.jpgThe California State Bar Newsletter recently reported a child custody case concerning a parent with a mental illness. In February, a local court decided that “parental rights can be legally terminated when a parent poses a danger to his child, even if the danger results from a treatable mental disability.” This ruling could have significant impact for parents in California who are currently involved in custody disputes.

Implications of California Family Code § 7827 on Mental Disability

In this recent case, a married mother and father adopted a child. Before the parents were married, the father had a diagnosed mental illness but managed his condition with medication, which “allowed him to function normally.” After the parents adopted the child, the father stopped taking his medication, and his “mental condition deteriorated” so substantially that it “seriously impacted his relationship with his wife and child.” In fact, the negative effects of his mental state led his wife to file for a restraining order.

Ultimately, the mother filed a divorce petition, and the court awarded her sole custody of their minor child. In addition, the mother filed a petition to terminate the father’s parental rights because of his mental disability.

Under California Family Code section 7827, a parent’s rights can be terminated when he is classified as “mentally disabled” according to law. In order to be mentally disabled under the statute, the parent must “suffer a mental incapacity or disorder” that leaves him “unable to care for and control the child adequately.” According to the statute, a parent’s mental disability can only lead to the termination of his parental rights when he is both mentally disabled and is “likely to remain so in the foreseeable future.”

The court ruled against the father. In terminating the father’s parental rights, the court determined that the father had a mental disability that left him unable to adequately care for his child. In addition, the court reasoned that his disability was likely to prevent his adequate care for the child in the foreseeable future despite the possibility that he could be treated with medication. In other words, the court found that it was in the best interest of the child to terminate the father’s parental rights.

Do Mentally Disabled Parents Face a Courtroom Bias?

California is one of many states in which mental illness can lead to a loss of custody or the termination of parental rights. According to Mental Health America, on average, when parents with mental illness face custody issues in court, between 70 and 80 percent lose their parental rights. Further studies show that in families where one parent suffers from a mental illness, in more than two-thirds of those cases, the minor child is not being raised by the parent with the mental disability.

Last year, a USA Today article reported that certain barriers still exist for parents with mental illness, and that our legal system “is not adequately protecting the rights of parents” who suffer from certain disabilities. The article cited a report by the National Council on Disability, which indicated that parents with disabilities, both physical and mental, are “more likely to lose custody of their children after divorce,” and that they face substantial difficulties with biases in the courtroom.

Often, caseworkers worry about child abuse and neglect when minor children are being raised by a parent with a serious mental illness. However, certain disability advocates argue that instead of focusing on the “best interest of the child standard” alone, the courts should take into account that support for mentally disabled parents “may be all that’s needed to eliminate risks or lessen problems.”

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Time.JPGKidnapping victims often face challenges when reuniting with family members.
Earlier this week three women who were kidnapped over a decade ago and held in a Cleveland, Ohio home were able to escape. These women are currently reuniting with their families after long periods of isolation. According to psychologists, reintroducing individuals who have been held captive to people they knew before can be a very difficult process.
In response to news of the women’s escape CNN.com republished a 2009 article discussing the reunification of two children with their parents after being kidnapped and held captive for extended periods of time.
One of the children featured in the piece was Richard K. Wilfong Chekevdia who was six years old when his mother abducted him in violation of a court order granting joint custody to both parents. The boy was forced to live in seclusion for over two years before he was discovered.
Military personnel also report that reunification with family members after deployment is the most stressful aspect of separation.
A survey of military spouses of deployed Army soldiers with young children also reveals that families experience challenges when reuniting after a stressful or traumatic experience. Of the military spouses interviewed, 75 percent of respondents said that the return from deployment was the most stressful stage of separation for the family. The military spouses described family members as having conflicted emotions.
Experts believe that children involved in custody disputes are susceptible to stress and anxiety when reuniting with a parent they have not seen for a period of time.

According to experts, in some cases, children who find themselves in the midst of their parents’ custody dispute may face similar challenges as kidnapping victims and military personnel when reuniting with a parent they have not seen for a long period of time. While children who are involved in custody disputes usually don’t experience the same level of severe isolation and trauma as these group, children who are involved in custody disputes are sometimes encouraged to develop feelings of hate or resentment against a parent. At times, the parent who is teaching their child to hate their other parent may employ extreme tactics.

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Health Insurance.jpgHealth insurance is a hot topic these days, spurred on by the passage on March 23, 2010, of the Patient Protection and Affordable Care Act (PPACA), more commonly known as Obamacare. The primary purpose of the PPACA is to reduce the number of uninsured Americans while reducing overall medical costs. On June 28, 2012, the United States Supreme Court upheld the constitutionality of the PPACA in the case, National Federation of Independent Business v. Sebelius. With all the recent developments in this area, it is important to know how health insurance coverage plays out in the divorce process.

If both you and your spouse are employed and maintained health insurance coverage through your respective employers, then maintaining that arrangement should be addressed during divorce negotiations and specifically stated in the marital settlement agreement or divorce decree. If, however, you maintain health insurance through your spouse’s employer, once the divorce is finalized, you will no longer be eligible for coverage. Address the issue early on so that you do not end up with a gap in coverage, which could jeopardize your eligibility for health insurance.

There are several options available. If your spouse’s employer has more than 20 employees, then you are eligible to apply for continued health insurance coverage under the federal law known as COBRA (Consolidated Omnibus Reconciliation Act), passed by Congress in 1986 to provide for the continuation of group health coverage that might otherwise be terminated. A divorced spouse may elect COBRA coverage for a maximum of 36 months, but be warned: COBRA is usually more expensive. Under COBRA, you will be responsible for the entire amount of the premium plus two percent (2%) for administrative costs.

If your spouse’s company has fewer than 20 employees, a second option in the state of California is to elect coverage under the California plan know as Cal-COBRA, which is basically an extension of the federal COBRA law for California residents who do not qualify for federal coverage. Cal-COBRA is “a mini COBRA health insurance plan set up by the California government.” See http://www.cobrainsurancedirect.com. You may elect Cal-COBRA for a maximum of 36 months, but it too is expensive. Under the plan, you will be responsible for the entire amount of the premium plus ten percent (10%) for administrative costs. Given the cost and time limit associated with COBRA and Cal-COBRA, you may want to check into private plans, which may be cheaper and more permanent. If you are employed, a third option may be to obtain health insurance coverage through your employer.

If children are involved, it is important to keep in mind their health insurance coverage issues, including which parent will provide coverage and who will pay the co-pays and other out-of-pocket medical expenses. Such issues should be raised during divorce settlement negotiations and made part of the marital settlement agreement or divorce decree.

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Moving.jpgWhen one parent wants to relocate with the minor child in a custody case, they will usually need either the consent of the other parent, or they will need a court order granting the move away orders request. This issue comes up often when one parent wants to move out-of-state for a new job or because they are getting remarried.

Issues that come up in a move away request are how the move would affect the minor child or children involved, how visitation and/or custody would be affected by the move, the reason for the move, and like all child custody matters, whether it is in the best interest of the child to make the move.

If a parent wants to move, it is not impossible to simply get the other parent to consent to the move. The law usually requires notification to the other parent of the proposed move before a court action is filed, and it is important to offer a reasonable visitation schedule to the other parent, since a move will usually make it more difficult for the other parent to maintain the current visitation schedule.

If the other parent does not consent to the move away request, then you will usually need to file a request with the court to be able to move with the minor child or children, unless a prior order already gives you the right to change residency without the consent of the other parent. In a court hearing, there are some presumptions that favor the parent with primary custody of a child. However, those presumptions can be overcome, as it is important to make a clear case to the court why the move will benefit the minor child or children.

One of the most important factors is which parent has been providing a stable environment for the child. Other important factors are comparing the schools – for example is the new school better for the child than the old school – and also community statistics. A judge is more likely to grant a move away request where the parent is moving somewhere with a lower crime rate and better schools, than the other way around.

An important caveat to remember is that a move away request is not automatic, even if you are the primary custodial parent. A request should be made with plenty of time to spare before the planned move; this is not something to request at the last minute. A court may not allow you to move with the child, which means you could still move, but custody would switch and the child would stay with the other parent.

Also, a move away court dispute can be very costly, so it makes better financial sense for parents to try to work out an arrangement that allows the move but maintains sufficient contact with the other parent. With modern technology, this is much easier, with parents able to video chat with their children over the internet from anywhere in the country, or even the world. Also, often the parent who doesn’t have as much visitation time during the school year after the move could have most of the time during summer and holidays.

Last caveat, do not try to move away just to get an advantage in a custody case. If you aren’t doing something with the child’s best interest in mind, that could really backfire in a custody case.

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Ripples of Water.jpgIn California, Family Court judges can order a child custody evaluation, which may also be referred to as a “730 Evaluation,” to look into the mental health and parenting practices of one or both parents. The evaluation usually takes place over a period set forth by the judge or the evaluator, from weeks to, sometimes, months. It will generally consist of psychological testing as well as interviews conducted with all adults involved with the child, including parents, step-parents and sometimes other adults who have significant roles in the child’s life. While the judge orders the evaluation, either parent may also make a request for an evaluation.

Child custody evaluations have become quite commonplace in California family courts. Child custody evaluations are most often ordered when the judge has concerns about the best interests of the child. Judges will often base custody and visitation orders on the findings in these evaluations. Typically, an evaluation could be ordered for a number of reasons, including:

· Concerns about child abuse
· Substance abuse
· Mental health problems
· One parent wishes to move out of state and the other parent objects
· Questionable parenting practices
· Inability to agree on a custodial agreement
· Questions or concerns about the child’s upbringing
Of course, there are other reasons you may wish to have an evaluation completed, and if that is the case, you can certainly request one.

In California, a custody evaluation must be conducted by a qualified mental health professional, like a psychiatrist, psychologist, qualified social worker, or marriage and family therapist. Even when a psychologist serves as the evaluator, they may choose to enlist another psychologist to complete the testing, with the evaluator then interpreting the test, since it is a highly-skilled area. The evaluator may either be chosen directly by the judge, or the judge may ask the parties to submit a list of evaluators, which the judge will then choose from.

After the evaluation, the evaluator will write up and submit a report to the judge and the parents’ attorneys. The evaluator may be called into court to testify, either to defend or explain the recommendations, and in some cases, can be ordered to conduct further study into the matter. The parties will receive the evaluator’s report in enough time to allow them to review it and make any objections.

If you disagree with the evaluator, you may challenge the evaluator’s report or even file a motion to have the evaluator removed. In a recent case a father successfully moved to have the evaluator removed. In that case, the evaluator acted in ways to suggest that he was biased against the father. Furthermore, the court found that, through this bias, the evaluator may have negatively influenced the child’s view of his father. Because the court then awarded sole legal custody to the mother based, at least in part, on the evaluator’s report and on the child’s possibly tainted statements, the court ordered the evaluator removed and the court’s custody determination reversed.

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