Pre-Birth Custody and Visitation Orders

Under California’s Uniform Parentage Act (UPA), unwed parents have essentially the same custody and visitation rights as married parents.  These are frequently referred to as “paternity” cases.

However, in 2006, the California legislaPregnantture amended Family Code Section 7633 to also authorize the entry of pre-birth orders and judgments, with the provision that enforcement of any such order or judgment must be stayed (postponed) until after the child or children are born. This allows parents to “think ahead” proactively about their new child rather than simply reacting to circumstances later.

Such pre-birth orders can help with many things, such as keeping the peace in the hospital when the baby is born and providing a plan for the baby’s care on release from the hospital, ensuring that both parents have a chance to hold and bond with their child(ren).

Julie Brock with the California Continuing Education of the Bar (CEB) recently published an article on this issue, which is expanded upon in the CEB’s new book for 2014, California Child Custody Litigation and Practice.

For more information about paternity cases or child custody and visitation, or if you want more information about other California family law and divorce issues, please contact attorney Gary D. Sparks at (925) 465-2500 or (707) 398-6008.  You may also contact us directly through our website by clicking on the “Contact Us” links and buttons to the right of this article.


What Moms Can Learn from Dads

Fathers who are primary parents find more time for leisure and less time for chores, and overall present their children with a healthier picture of domestic life than do mothers who are primary parents, according to column that appeared in USAToday over the weekend.

Although primary-father households are less common than primary-mother households (fathers typically provide about 40% less child care on a daily basis than mothers, and primary-father households only make up about 20% of families with young children) researchers seem to be learning that fathers tend to do things a little bit differently, and in some cases a little better, than in more traditional families.

According to the columnist, today’s fathers are teaching mothers four lessons:

1) It’s OK to keep a hand in the workforce.
It doesn’t have to be “work or stay home.”

2) You don’t have to do the laundry. Domestic work
and child care can be negotiated as separate jobs.

3) Parents are people, too. Give yourself permission
to have leisure time.

4) Kids need both parents.
For more information about child custody and visitation or other California family law issues, please contact attorney Gary D. Sparks.

Q&A: Can My Ex-Husband Take our Children and Move Out of California Without My Consent?

The moveaway issue in California family law has been litigated heavily over the past few years. A proposed move in the residence of a child can be the “change in circumstances” required for the Court to revisit and modify child custody.

A 2004 case (In re Marriage of LaMusga) decided by the California Supreme Court refocused the family courts in the state by ordering that they must make a determination about whether or not a child should move out of the area with one of his/her parents based on what is in his/her “best interests.”

In a nutshell, if the parent opposing the moveaway can show the Court that there would be a detriment to the child — e.g. not in the child’s “best interests” — caused by the moveaway (frequently because that parent is OLYMPUS DIGITAL CAMERAhighly involved in the child’s life, activities, schooling, etc), then the Courtmust use its discretion to arrive at a custodial arrangement that is in the child’s “best interests.” Keep in mind that the detriment issue is a threshold issue — that is, the opposing parent must establish there will be a detriment to the child(ren) before the Court will step in and block a moveaway. In other words, there is no “automatic” right for a custodial parent to moveaway with a child. While the primary custodial parent is presumed to have the right to moveaway with children, a finding of “detriment” will block that move until the Court can further examine the issue. In a case where both parents are joint custodial parents, arguably no such presumption exists at all.

In looking at the “best interests,” the Court has discretion to look at many factors, and will often times appoint an expert child custody evaluator to investigate the matter and report back to the Court. The Court will usually look at the parent-child relationships and examine how they could be best maintained over a distance. The Court will generally also look at how embedded the children are into their local community — their friends, family members, education & schooling, extracurricular activities & sports, civic organizations, etc. — to determine whether or not the same opportunities are available in the new location.

If there is no order prohibiting relocation (or restricting a change in the children’s residency) in your custodial orders, then the first move is typically to file a motion with the Court (ex-parte motion if the move is imminent) making the best case you can that there would be a detriment to the children caused by the move and requesting that the Court temporarily block the move until it can determine what is in the children’s “best interests.” Remember that while the Court has the discretion to block the moveaway of the children, it almost never can block your ex from moving away himself.

To get more than just a general overview of moveaway law, your best bet is to consult with an experienced family law attorney as soon as you can so that you clearly understand what the law can and cannot do in your specific situation, and so that you can put together your game plan on how to oppose and stop your ex’s relocation with the children.

Good luck!

For more information about child custody and visitation or other California family law issues, please contact attorney Gary D. Sparks.

Etiquette for Exes

Having trouble getting along with your Ex? I recently ran across the Etiquette for Exes blog. Turn here for tips and tricks for how to stop fighting, particularly when you and your Ex have children together. I can’t personally vouch for the content on the site, but think it provides an interesting perspective on the importance of civility and maintaining your calm when dealing with your Ex, and the harm that can come to your children if you are not able to remain civil.

For more information about co-parenting and other California family law issues, please contact attorney Gary D. Sparks.

California Custody Battle Ends in 15-Years-To-Life Murder Conviction

Linux computer programmer Hans Reiser was sentenced on August 29, 2008 to 15-years-to-life in prison after confessing to the murder of his estranged wife, Nina, during a heated argument over custody of the couple’s young children. The two had been embroiled in a contentious divorce case in Oakland, California, until Nina’s mysterious disappearance in early September 2006.

According to the San Francisco Chronicle, Reiser turned down the prosecution’s pre-trial offer of three years in prison in exchange for his guilty plea to voluntary manslaughter, opting instead for a full trial. That strategy backfired, and after the jury returned a guilty verdict to first-degree murder, Reiser plea-bargained the conviction down to second-degree murder in exchange for his leading police to the makeshift grave where he buried Nina’s body and for waiving any rights to an appeal of the conviction.

Today, more and more husbands and fathers complain that they are the victims of fabricated accusations of domestic violence by angry and vindictive spouses or partners who take advantage of California’s rather liberal standards for obtaining protective orders. The DVPA, or Domestic Violence Prevention Act [California Family Code §6200 et seq.] is intended to prevent the recurrence of acts of domestic violence and to provide some separation, in terms of both distance and time,
702559_broken_relationship_1-thumbbetween the parties involved sufficient to enable them to resolve the cause(s) of the violence. Men frequently complain that many of the women who apply for restraining orders or emergency custody orders under the DVPA are not seeking protection so much as they are seeking either revenge or some kind of an advantage during the legal proceedings. They argue that the applications for relief are filled with creative fiction as opposed to facts. I myself have had experience with cases like this involving malicious and groundless allegations. And not just by women against men, but also by men against women.

Unfortunately, however, the Reiser case illustrates that domestic violence is and remains a serious problem in California (as well as in other states), despite the allegations of ongoing misuse of the system. Nina Reiser wasn’t just harassed or injured; she lost her life, the couple’s children lost their mother, and her family lost a daughter.

As legal practitioners, we grapple with how to ferret out those cases where protective orders are warranted versus those that are shams. All else being equal, when two parties in the courtroom appear perfectly calm, reasonable and credible, we sometimes give our judges the nearly impossible task of trying to balance fairness and justice with protecting one of the parties – and maybe even children – from harm.

Yet one thing is clear: until we as a society learn how to deal with and prevent domestic violence more effectively than we do now, we will continue to struggle with this problem. Innocent parties will continue to be accused of horrible actions, vengeful parties will continue to make those accusations, victims will continue to be injured, and people like Nina Reiser will inexcusably and unacceptably continue to die.

For more information about domestic violence prevention and other California family law issues, please contact attorney Gary D. Sparks.