|
CHILD CUSTODY AND VISITATION
Written by Delilah Knox Rios, Attorney at Law
A
Two Part Series -Part Two
In a Family law cases involving Dissolution of Marriage (divorce), Nullity (anullment), Legal Separation, Domestic Violence Prevention Act, and Uniform Parentage (paternity), the mother and “presumed” father of the minor child are equally entitled to custody.
A “presumed” father is one who: is or was married to the mother and the child was born during the marriage or within 300 days of the judgment, OR he and mother tried to marry and child was born during the attempted marriage or within 300 days of judgment of nullity or cohabitation, OR after birth he and mother married or attempted to marry and he is named on the birth certificate OR he is obligated to support the child under a written voluntary agreement OR he received the child into his home and openly held out the child to be his natural child. Evidence to disprove that the “presumed” father status can be presented, often by a DNA test. Once established as the father, custody rights and support obligations come into play. Should one parent die, the surviving parent is entitled to custody of the child.
In making a decision regarding the best interests of the minor child as to custody and visitation, the court must consider the following factors: health, safety, and welfare of the child, AND any history of abuse by one parent against any child related to him/her by blood or marriage or caretaker, against the spouse, cohabitant or other person seeking custody AND nature and amount of contact with both parents AND habitual or continued illegal use of controlled substances or abuse of alcohol. Where physical abuse or substance abuse is present, the Court must make specific orders regarding time, place and manner of transfer of the children. If a child is of sufficient age and capacity the court shall consider and give due weight to a child’s preference. The Court can preclude a minor child being called as a witness and can use alternative means to discover the preference of the child such as ordering psychological and child custody evaluations to include both parents and the child. Also, the Court can appoint an attorney to represent the interests of the child.
The state’s public policy is that the health, safety and welfare of the minor children are of primary concern. Also, public policy of the state is to assure children frequent and continuing contacts with both parents and to encourage parents to share the rights and responsibilities of child rearing.
Regardless of whether legal custody is awarded jointly or to one parent solely, a parent is entitled to have access to the records and information pertaining to a minor child, including medical, dental, and school records. Severe consequences result if a parent commits physical or sexual abuse on a minor child or if knowingly false allegations are made, likewise, failing to assume certain caretaker responsibilities or if a parent prevents or attempts to thwart custody or visitation orders. Significant problems arise when one parent wishes to “move away” with the minor children which may cause a disruption in the current child custody and visitation parenting plan. Legislation and case law are pending in this area. Commencing July 1, 2003, all child custody and visitation orders must contain specific language to insure California child custody orders are complied with outside state borders and Courts must take steps to prevent the abduction of minor children by one parent if the risk of abduction is discovered. |
