Child Custody Modification

Child Custody Modification

Child Custody Modification

In California, modifying a child custody order requires a proof of significant change in circumstances. However, like most rules in the legal field, this rule also comes with important exceptions. Here, I will discuss some of those exceptions. However, first I will discuss where the change in circumstances rule comes from and why does it exist in child custody cases.

 

Res Judicata

Generally, you may need to prove significant change in circumstances when you ask for a modification of a child custody order in family court. The key phrases here are “modification” and “custody order.” In the legal field there is this concept called “Res Judicata.” This is the principle that states, for the sake of judicial efficiency, a case should not keep getting re-litigated if it has already been litigated or decided once on its merits. The way Res Judicata is incorporated within child custody laws is through the rule of significant change in circumstances. So, assuming there is a final custody order, one way you can modify it is to first prove a significant change in circumstances. In short, you are telling the court that there are no issues with Res Judicata since there are new facts (changed circumstances) that are significant enough to requires modification (litigation). Thus, you are not re-litigating the exact case that was litigated previously. In fact, change in circumstances requires a showing of circumstances that did not exist at the time the custody order was made.

Exceptions to Change in Circumstances

Given that Res Judicata is the governing principle behind the significant change in circumstances rule, then we can logically deduce certain exceptions to the significant change in circumstances. So, in California, the type of cases stated below proof of significant change in circumstances may not be required for child custody modification.

Temporary vs. Final Custody Orders  

If a child custody order is temporary and not final judgment or final order of the court, then you do not need to prove significant change in circumstances to change custody. So often the issue here comes down to the definitions of final and temporary custody orders.

 

Increasing Parenting Time or Visitation

If you are just asking the court for more time with your child and not necessarily a change in custody you do not need to prove significant change in circumstances. For example,  you may want more visitation time with your child. Perhaps, you want an additional weekend per month. If your request is not significant enough to be considered a change in custody, then you do not need to point to significant change in circumstances. You may only need to prove that the change you request is in the best interest of the child.

Conclusion 

California law recognizes exceptions to the significant change in circumstances rule in modification of child custody orders. Like the rule itself, exceptions are also governed by the principles of Res Judicata . We hope you found this article informative.

 

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Sabeti Law & Associates 

  • Family law attorneys in orange county 
  • Family law private mediation 

Tel: 949-326-2626

Fax: 949-899-8259

 

Address: 23832 Rockfield Blvd Ste # 175,

Lake Forest, Ca, 92630

Email: Contact@Sabetilaw.com 

Monday - Thursday
9:00 am - 5:00 pm
Frirday
10:00 am to 2:00 pm
Saturday- Sunday
Closed

Custody of William Jr.

Custody of William Jr.

Birth of William Jr.

Ana, after a brief relationship with Garay becomes pregnant. Ana informs Garay about the pregnancy, but Garay does’t believe he is the father. Ana gives birth to a baby boy. The year is 1979. William Jr. is the name given to the baby boy. William Jr. becomes the subject of a child custody dispute that changes how custody laws are interpreted and applied in California and across the US.

Fatherhood

Ana, now a single mother, is also a nursing student. She is having a difficult time financially. So she goes to the family court and requests that the court order Garay to pay child support. Garay demands a blood test.  A blood test is taken. Garay is the biological father of William Jr.

Making it work

Garay realizing he is the father of William Jr. agrees to pay child support. He tells Ana that they should explore the possibility of forming a family. Garay moves-in with Ana and William Jr. but after six weeks Ana and Garay realize the relationship will not work. So, Garay moves out.

Custody dispute

Garay wants consistent visitation with his son William Jr. He wants to be a father. Ana refuses to agree to visitation or custody. Ana asks the family court to give her exclusive custody. Garay, in response, also asks for exclusive custody. A child custody dispute starts.

Child custody trial  

The custody of William Jr. goes to trial. The judge recognizes that custody determination must be based on the best interest of the child. Meanwhile, Garay is now married. Ana continues to study to become a nurse.

Garay’s case  

Garay argues that it is in the best interest of the child to reside with him since he is in a much better financial position. Garay is married. William Jr. can be cared for by his stepmother who will stay at home. As a result, William Jr. doesn’t have to stay with a babysitter or at different daycare centers. Garay – he argues- would never prevent Ana from visiting William Jr. if he has exclusive custody. Thus, Garay argues he should have custody.

Ana’s case

Ana argues that child custody has already been established.  Ana has been caring for William Jr. since birth. She should continue to have custody and nothing should change.  A change in custody would create instability in the child’s life since there is a strong parent-child emotional bond developed between Ana and William Jr. The same emotional parent-child bond does not exist between William Jr. and Garay. So, it is harmful to change custody now.

Family Court Judge Decides

The judge decides that it is in the best interest of the child to reside with Garay.  He is much better off financially. He can provide a more comfortable home and a living situation. He is married which means that there is someone to care for and raise the child. William Jr. would not have to stay with a babysitter or at daycare centers. On the other hand, Ana is a working single mother. A nursing student. She is not financially stable. Ana will not allow Garay to have visitation. Yet, Garay will give Ana visitation. Therefore- the judge decides- it is in the best interest of William Jr. to reside with his father.

t

Is this story based on a real case ?

Yes !

Burchard v. Garay

California Supreme Court Case 1986

Devastation

Ana is devastated. She realizes that she  lost custody of her son and vows to appeal.  She wants her son back. So, she appeals.

Appeal

Ana appeals to a higher court. The appellate court. Ana tells the higher court the family judge abused its discretion by giving Garay exclusive custody. Yet, the appeal court decides the judge did not abuse its discretion and the decision of the trial court is valid. Ana appeals to the California Supreme Court. Thus, she continues the fight.

Supreme Court

California Supreme Court agrees with Ana. The court decides the family judge abused its discretion. Increase in wealth is not correlated with better parenting. More importantly, wealth does not correlate with the degree of love and affection a parent can provide a child. If each parent can provide adequate care for the child, then the relative economic situation of each parent should not be a factor in custody. Even if Ana struggles financially, the law allows her to get child support.

The court agrees that the best interest of the child should determine who gets custody. Yet the best interest of the child should be determined by looking into the parent-child emotional ties and established bonds. Not money. Ana was the primary caretaker from birth. The parent-child emotional bond is much stronger between Ana and William Jr.  Ana’s refusal to agree to a visitation arrangement does not justify changing custody. Both Ana and Garay have acted immaturely. However, no evidence existed to suggest Ana would refuse to follow a court ordered visitation. The family court judge made an error and thus abused its discretion.

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Best Interest of the Child

Best Interest of the Child

Best Interest of the Child

The phrase “best interest of the child” is commonly used in California child custody disputes. So, it is reasonable to ask what does this phrase mean? This article is intended to help you learn the legal meaning of the phrase “best interest of the child” or “child’s best interest” in California child custody disputes. We hope you find this blog useful.

Court’s Discretionary Power

When it comes to child custody dispute in California, the law gives the family court judges a broad discretion in determining which parent gets custody. This discretionary standard means that one judge can rule in one way while another judge can rule in another way. Because the law gives this broad discretion to family court judges, it is often difficult to persuade an appellate court judge to reverse the custody determination of the lower family court. In cases where the appellate court does reverse the lower court’s decision it is often because the lower court judge has abused its discretion.  Thus, in most cases appeal can be a uphill battle.

Best interest of the child in California

Think of the concept of “best interest of the child” as a set of presumptions. What do I mean? Well, when you file a child custody petition, the court will automatically presume that it is in the “best interest of the child” to have a relationship with both parents. It is difficult to persuade the family court that “it is in the best interest of the child” to not have a relationship with one parent. Even if one parent is unable to provide adequate care, that parent is entitled to reasonable visitation.

Agreement between parents

Very often when there is a custody dispute there is some sort of temporary arrangement between parents as to custody, visitation and decision making. This agreement may or may not be in writing. However, the judge often turns this arrangement into a temporary court order until there is an actual trial as to the merits of the case. The judges do this because the law says the judge can presume that an ongoing arrangement between parents regarding custody and visitation is presumed to be in the best interest of the child unless one party shows otherwise. So, an agreement between parents as to custody or visitation can easily overcome the presumption that the child should have equal time with both parents.

Other Factors- See Family Code § 3011

What does it take to persuade a judge a certain arrangement is not in the best interest of the child? The family code gives some factors for the judge to consider. However, there are so many other factors the judge can consider in determining the best interest of the child.

Some of the statutory factors the judge will consider are the following:

  • Heath, safety, and welfare of the child;
  • Spousal or child abuse;
  • The nature and amount of contact with the parents;
  •  Abuse of illegal drugs, alcohol, or controlled substances;

Additionally, the court will consider which parent is more likely to allow the child to have a relationship with both parents. So, if the judge is persuaded that you won’t allow the child to have a relationship with the other parent, the judge may grant custody to the other parent.

Conclusion

In our opinion, you should work with a family law attorney to increase your chances of success in any family law matter outside and inside of the family court. In doing so, you will be able to use the right set of concepts and law to argue your position whether it is to the court or to the other parent.

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Sabeti Law & Associates 

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Tel: 949-326-2626

Fax: 949-899-8259

 

Address: 23832 Rockfield Blvd Ste # 175,

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Email: Contact@Sabetilaw.com 

Monday - Thursday
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Frirday
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730 Evaluation in California

730 Evaluation in California

What you need to know about 730 Evaluation in California

California Evidence Code 730 is commonly referred to as 730 evaluation in family law court. This law states that in court, at any time, the judge can order that an expert be assigned to investigate the issue that the judge must decide on. For example, in a child custody matter, one parent may claim that the other parent is unfit to have custody of the child. The court needs evidence to determine whether the claim is true. Thus, the court, on its own, or after request by a party, can appoint an expert to investigate and analyze. Remember, 730 evaluations are not just for custody cases. It applies to divorce and  financial issues as well. For instance, we have 730 child custody evaluations, 730 financial evaluations and more.  

730 Custody Evaluation

Court may order a 730 child custody evaluation  to determine who should have physical and legal custody of the child.  For example, if one parent is claiming the other parent is abusive, then the court may order an evaluation by a licensed social worker, psychologist or Marriage and Family Therapist. The role of the expert will be to collect data, determine facts, and analyze. Once the investigation is complete, the expert prepares a report for the court. The report may have a recommendation. The report may also be used as  evidence to help the court decide. Thus, 730 evaluations can become very important.

730 Financial Evaluation

The court usually orders a forensic accountant or other experts when there is a dispute regarding ownership, value, or misappropriation of property. These types of analysis are done by an expert. A report will be drafted by the expert so the lawyers and the court can determine the division of money or assets between the spouses. As with the custody evaluation the court will consider financial evaluation report as evidence in court. Thus, it is important to take it seriously.

730 Evaluation Cost

730 evaluations can become costly. Depending on the extend and complexity of the dispute it can cost thousands of dollars. Usually, the court will ask each spouse to file with the court an Income and Expense Declaration (Form FL-150). Based on that form and based on the finances and income of each party the court may either divide the cost or have one party pay it in entirety. Sometimes the court may require one party to pay and require the other party to pay his or her portion later. This is called allocation. Remember, the court can require the investigation despite the parties both disagreeing to the investigation. Additionally, the court can require one or both parties pay the cost. In short, this could cost the parties a significant amount of money depending on the complexity of the matter.

Will 730 Evaluation Be Fair

Generally, evaluators are neutral experts who are unbiased and uninterested third parties. In fact, the law requires the evaluators to be unbiased and neutral. Usually, one party cannot speak to or communicate with the evaluator in the absence or without the permission of all the parties or the judge. Thus, the evaluation should be fair. Having legal representation can help make sure that the evaluator does not have a previous personal relationship or other conflict of interest with the other party. So, it may be a good idea to have a lawyer to make sure everything is done properly.

Conclusion

730 evaluation is a report prepared by a court appointed expert. The report can be used as evidence to help the court make a proper decision in the family law case before it. Thus, it is important to take it very seriously.

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Sabeti Law & Associates 

  • Family law attorneys in orange county 
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Tel: 949-326-2626

Fax: 949-899-8259

 

Address: 23832 Rockfield Blvd Ste # 175,

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Preparing for custody mediation

Preparing for custody mediation

Preparing for custody mediation

In California, the law requires the parents to a child custody dispute participate in a court mandated custody mediation.  In this article, you will learn the steps you need to take to prepare for custody mediation in California family court.  We hope to give you practical advice on how to prepare for your child custody mediation.

What is custody mediation

Custody mediation is a process where parties try to negotiate a resolution to their dispute prior to the judge hearing the case. The law requires parents to participate in a custody mediation prior to the hearing. See Family Code 3170-3173 . The purpose is to encourage parents to resolve their child custody or visitation dispute through negotiation. Therefore, the law is encouraging you to resolve your family law dispute with minimal court involvement.

Who will be the child custody mediator

Custody mediator will be a neutral person whose job is to facilitate a discussion between the parents. Much of the time the court has certified mediators. Sometimes the mediators are former lawyers or current law students.  Remember, mediators are not judges. They cannot decide on anything. So, whether there is an agreement reached in mediation is a choice the parents have to make.

Can custody mediation help or hurt my case

Generally, everything that takes place during a custody mediation is confidential. In some counties, if the parents cannot agree to custody the mediator can make a custody recommendation to the judge. Additionally, the law requires that parents participate in good faith. However, there is no requirement that you agree to any custody arrangement in mediation. Therefore, it is important to participate in good-faith and be prepared to negotiate to make a success out of your custody mediation.

Preparing for child custody mediation

Below we will give you some practical advice on how to prepare for your child custody mediation.

Know your case!

It is important for you to know whether your custody case is weak or strong. This can help you determine how much leverage you have in mediation. Thus, know your case!

Create a custody or visitation proposal

In most cases even the none-custodial parent is entitled to reasonable visitation with his or her child. To prepare for custody mediation, get a calendar and mark on a calendar the days each parent will have custody or visitation. You can mark “M” for mother and “F” for father. Feel free to include when custodial/visitation time starts and ends. You can even say at what time each parent is entitled to a phone call or face-time with the child.

Create alternative proposals

Creating alternative custody or visitation proposals will help you negotiate a fair custody agreement. So do not just create one. Have different options in case the other parent cannot accommodate one of the proposals.

Do not be late

You will have certain amount of grace period in case of traffic or emergencies. Try not to be late to your custody mediation. Remember, in some counties the mediator may make a custody recommendation to the judge. So, do not be late to make sure you don’t end up on the bad side of the mediator.

Be polite

Custody mediations are supposed to be cooperative. Because in custody disputes emotions are high it can be hard to be polite. It is important for you to participate in good-faith. Being polite may show good-faith participation. If you do not participate in good-faith the judge can reschedule the hearing to require you to participate in good-faith.

Show flexibility but do not be pushed

Showing flexibility to a reasonable proposals in a custody mediation is important. Remember, the goal is to act in the best interest of your child. However, do not be pushed around by the other side. A good strategy for showing flexibility but remaining firm is to give a counter proposal. For instance, if the other parent gives a suggestion that you do not agree with then take that suggestion and modify it to your liking and give a counter proposal. This way, you are engaging in a flexible but firm negotiation.

Conclusion

Custody mediation in California is required. It is important to prepare for your custody mediation for you to make the most out of your mediation. Participate in good-faith and consider implementing the suggestions in this blog. Doing so can help you succeed in your custody mediation in family court.

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Preparing for custody mediation

Preparing for custody mediation

In California, the law requires the parents to a child custody dispute participate in a court mandated custody mediation.  In this article, you will learn the steps you need to take to prepare for custody mediation in California family court.  We hope to give you practical advice on how to prepare for your child custody mediation.

read more

Sabeti Law & Associates 

  • Family law attorneys in orange county 
  • Family law private mediation 

Tel: 949-326-2626

Fax: 949-899-8259

 

Address: 23832 Rockfield Blvd Ste # 175,

Lake Forest, Ca, 92630

Email: Contact@Sabetilaw.com 

Monday - Thursday
9:00 am - 5:00 pm
Frirday
10:00 am to 2:00 pm
Saturday- Sunday
Closed

Father winning custody

Father winning custody

What are the chances of a father winning custody

There is a common belief that in custody disputes the law prefers mothers instead of the fathers. Yet,  this is not the case. The law does not give preference based on sex. Thus, the chances of a father winning custody is the same as the chances of a mother winning custody. 

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Primary Caretaker/Caregiver Rule

Whether you are the father or the mother has little impact whether you will get custody of your child. What matters is who is the primary caretaker/caregiver of the child. If the father is the primary caretaker then his chances of winning custody goes up. If the mother is the primary caregiver, then her chances of winning custody goes up. Thus, the sex of the parent is not relevant. 

Historical reasons 

Historically, mothers have assumed more of the care taking role within the family unit. In the modern age, things are changing. Many fathers are now primary caretakers since the father is the parent who changes diapers, takes the child to school and cooks while the mother goes out and works to support the family financially. Therefore, as society is changing the perception that the law favors mothers over father in child custody disputes will change as well.

Conclusion 

As stated, the primary caretaker rule is just one of the factors that the court will consider in determining whether you will get the custody of your child. So, talk to a local child custody lawyer to discuss other factors the court may consider for your specific case.

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In California, the law requires the parents to a child custody dispute participate in a court mandated custody mediation.  In this article, you will learn the steps you need to take to prepare for custody mediation in California family court.  We hope to give you practical advice on how to prepare for your child custody mediation.

read more

Sabeti Law & Associates 

  • Family law attorneys in orange county 
  • Family law private mediation 

Tel: 949-326-2626

Fax: 949-899-8259

Monday - Thursday
9:00 am - 5:00 pm
Frirday
10:00 am to 2:00 pm
Saturday- Sunday
Closed