Alternative Approaches to Dealing with Custody Disputes

Norris Family Law

It used to be that in resolving custody disputes, case preparation involved either mediation with Family Court Services (the mediation arm of the court) or a full custody evaluation by an outside mental health professional, followed by negotiation to try to resolve the dispute and, if that was not successful, by a court hearing or trial.

Today, there are many other approaches to resolving custody disputes.  The choice will depend on the particular facts of the case and goals of the client, but here are some of the alternative approaches that are available.

Comprehensive Child Custody Evaluation.  This is done by an outside mental health professional who specializes in evaluating parents and their children to determine what custodial and time-share arrangement will be in the children’s best interest.  The purpose of the evaluation is to assess the functioning of the parents, their relationship with the children, the children’s developmental and emotional needs, and the degrees to which each parent can meet those needs.  The evaluation typically includes individual interviews with each parent; observation and (if age appropriate) interviews with the children both in and outside the parents’ presence; home visits to observe parent/child interaction in the home setting and to assess the safety and appropriateness of the homes; interview with collateral sources of information such as teachers, doctors, pediatricians, and day care providers; and (sometimes) psychological testing of the parties.  At the end of the process the evaluator prepares a comprehensive written report with recommendations as to what custodial and parenting arrangement will best meet the needs of the children.  The report is given to the parents, their attorneys, and the court.  It often serves as the basis for negotiation and settlement and, if that is not successful, the judge considers it and uses it in guiding his/her decision.

Focused Assessment.  While similar to the comprehensive custody evaluation, a focused assessment is much more limited.  The court, or the parents or their attorneys, define and clarify the specific issues that the Assessment will consider.  The Assessment is limited to just those issues and typically involves interviews with each parent, observation and (if age appropriate) interviews of the children.  A written report is issued that makes specific recommendations.  When a full evaluation is not warranted, this is a quicker, more cost effective way to assist parents, counsel, and the court to resolve issues.

Recommending Mediation.  Here, the mental health professional functions as a mediator to help the parents reach agreement on issues concerning their children.  But unlike mediation in other setting, which is completely confidential, if the parents are unable to reach agreement, the Recommending Mediator will submit his/her recommendations to the parties, their attorneys, and the court.  Often this serves as the basis for negotiation and settlement but if that is not successful, the judge will make the decision.

Confidential Mediation.  This is true mediation.  It is confidential, and nothing said in the sessions is admissible in court.  The mediator helps the parents to generate a comprehensive parenting plan that includes everything from a basic timeshare custody schedule through the sharing of holidays, vacations, summer, and the like.  Or, the work can be limited to resolution of minor difficulties where there is already an ongoing custody agreement.  The scope depends on the wishes and needs of the parties.

Special Master/Parenting Coordinator.  Here, the parents and their attorneys stipulate (prepare a written agreement) giving the Special Master/ Parenting Coordinator authority to make decisions over the specific issues, and only those issues, listed in the agreement.  Usually the agreement says that if a parent does not agree with a particular decision, he/she retains the right to bring that issue before a judge.  Special Masters/Parenting Coordinators are most useful after custody orders are in place, but parents want an efficient way to resolve issues as they come up (such as, for example, disagreements over scheduling vacations with the children).

Co-Parent Counseling.  This is for parents who have a functioning custody plan but need a forum to communicate more effectively and prevent minor issues from spiraling into larger ones that could lead to litigation if not resolved.  The work is confidential, and the sessions are on an as-needed basis.  This is counseling, not therapy.  It is to help parents focus on the children and make decisions that they believe are in the children’s best interest. 

These are some of the services now available to help parents and their attorneys resolve disagreements about custody and parenting issues.  You should discuss with your attorney what approach is best for your and your children’s individual situation.

 

Children’s Bill of Rights

This is from an article by the American Academy of Matrimonial Lawyers and is designed to reduce the pressures inadvertently or intentionally placed on children whose parents are divorcing. We included it in our newsletter some time ago, but believe it deserves repeating. Here it is:

Every kid has rights, particularly when mom and dad are splitting up. Below are some things parents shouldn't forget -- and kids shouldn't let them -- when the family is in the midst of a break-up.

You have the right to love both your parents. You also have the right to be loved by both of them. That means you shouldn't feel guilty about wanting to see your dad or your mom at any time. It's important for you to have both parents in your life, particularly during difficult times such as a break-up of your parents.

You do not have to choose one parent over the other. If you have an opinion about which parent you want to live with, let it be known. But nobody can force you to make that choice. If your parents can't work it out, a judge may make the decision for them.

You're entitled to all the feelings you're having. Don't be embarrassed by what you're feeling. It is scary when your parents break up, and you're allowed to be scared. Or angry. Or sad. Or whatever.

You have the right to be in a safe environment. This means that nobody is allowed to put you in danger, either physically or emotionally. If one of your parents is hurting you, tell someone -- either your other parent or a trusted adult like a teacher.

You don't belong in the middle of your parents' break-up. Sometimes your parents may get so caught up in their own problems that they forget that you're just a kid, and that you can't handle their adult worries. If they start putting you in the middle of their dispute, remind them that it's their fight, not yours.

Grandparents, aunts, uncles and cousins are still part of your life. Even if you're living with one parent, you can still see relatives on your other parent's side. You'll always be a part of their lives, even if your parents aren't together anymore.

You have the right to be a child. Kids shouldn't worry about adult problems. Concentrate on your school work, your friends, activities, etc. Your mom and dad just need your love. They can handle the rest.

The divorce is not your fault – Don’t blame yourself.

 

Custody Mediation

Who Needs To Participate In Child Custody Mediation?

Under California law, before a Court can hear and decide a custody motion, the parties must attend custody mediation. So if one party wishes a change in the current custody and/or timeshare arrangement and files, or threatens to file, a motion, or if parents who have just started the dissolution process cannot agree upon a timeshare, the parents must use some sort of child custody mediation. The process differs from case to case, but if successful, the end result is that the parents, not the court system, determine a custody and timeshare arrangement that is best for themselves and their child(ren).

Family Court Services

Each Bay Area county has established its own program (Family Court Services) to provide parents with access to mediation services as mandated by state law. The attorneys at Norris Family Law will meet with you to explain the process and help prepare you for your mediation. Children should not be involved in the mediation unless ordered by the Court or requested by the mediator.

Private Mediation

Many parents, however, agree to utilize private mediation rather than Family Court Services. There are a number of private professionals that specialize in custody and timeshare mediation, and the attorneys at Norris Family Law will work with you in selecting the right professional relative to the facts and issues in your case.

Parenting Plan

If successful, parents leave mediation with a parenting plan that best suits their needs and the needs of their child(ren). Some plans are very general, with minimal structure, while others cover every aspect of the timeshare, including all holidays, school pick up and drop off, extracurricular activities, and details specific to each individual case. If the parents agree upon a plan, it is made into an enforceable order of the Court.

What If The Parents Cannot Agree?

Depending upon the county in which your case is pending, the mediator may or may not issue his or her recommendation to the Court. If the parents cannot agree, it is the judge who decides upon an appropriate custody and timeshare plan. Norris Family Law, like most family law attorneys, believe it is better for the children and the parents if the parents can reach a mediated agreement, as it provides all concerned with far more flexibility than a plan decided by the Court.

 

What is Family Court Services (and why am I being sent there)?

Family Court Services is the custody mediation branch of the court. If you have children and are involved in a custody dispute, you will likely need to attend a Family Court Services mediation. The Family Court Services mediators typically have a background in the mental health field and hold a social worker or similar type of educational degree. You will be asked to fill out a questionnaire in advance which helps the mediator get a broad overview of the issues in your case.

In San Mateo County, Family Court Services mediations are non-confidential, meaning that the mediator will write a report and recommendation to the court at the conclusion of the mediation. The mediation dates are usually set a few weeks in advance, although a limited number of slots are reserved for day-of-court mediation. On the day of the mediation, show up a few minutes before the appointed time to check in. You and your spouse will sit down with the mediator, who will hear from both of you and then attempt to facilitate a resolution to the custody dispute. You will not have a great deal of time with the mediator, although the mediation may take up to a few hours. If you and your spouse can come to an agreement, that agreement will be memorialized in the mediator’s report to the court. If not, the mediator will make a recommendation to the court. In either case, the court usually adopts the mediator’s recommendation. This is because, unlike the judge, the mediator has had time with the parties to assess both parties’ concerns, and because the mediator is viewed as being skilled at understanding family dynamics and the best interests of the children, which is the standard the court must abide by in making custody rulings.

While this approach is intended to help judges make fairer and more thoughtful decisions than they could without the benefit of a neutral mediator, sometimes parties feel that the mediation was an insufficient forum in which to address all of the concerns they may have. Parties may feel that they had limited time, that the mediator was rushed, or that their spouse spoke over them, and they were not given equal “air time” and not truly heard by the mediator. One alternative to Family Court Services is to find a private mediator, and to try to work out a custody and timesharing arrangement through that person. While private mediation will cost money, you and your spouse can set aside as much time as necessary for the mediation, depending on your needs. Settling custody issues early on in your case can help save money - in some cases significant sums- down the line.

One final note: if domestic violence is an issue in your case, mediation may be inappropriate. While you may still attend a Family Court Services mediation, you and your spouse will be put in separate rooms if one of you requests this, and the mediator will go back and forth between you. Family Court Services: 650-363-4561

Basic Facts About Custody

Under California law, a judge must decide custody based upon what is in the child’s “best interests.” If the parents cannot agree, then a third party must be brought in to help. Usually the third party is either a mediator at the court, or a private mental health professional who evaluates the situation to make a recommendation. If the parents agree, a judge almost always will approve their agreement and make it an order of the court.

There is no preference in California for a mother or a father; the law recognizes that both parents are an important part of a child’s life, and judges are mandated to be gender neutral. In addition, a court is not permitted to deny rights of custody or visitation simply because the parents were never married to each other, or because of a parent’s religious belief, sexual orientation, unconventional lifestyle, or physical disability.

Legal custody is almost always jointly shared by the parents. This refers to who has the right to make decisions about the child’s health, education, and welfare. Examples are school selection, medical treatment, medication issues, dental care, and psychological therapy and treatment.

Physical custody refers to the time actually spent with each parent on a regular basis. Shared physical custody does not necessarily mean that the parents share the child’s time equally. There can be an order of joint physical custody with, for example, a child spending 40% of the time with one parent (or 45%, or 30%, or 20%, etc.). It is our experience that more and more time-share orders are called “joint physical custody” even when there is a significant difference in the amount of time each parent spends with the child.

The philosophy of the law in California is to make a plan that is the best for the child, not to make a plan that is best or fairest for the parents. Most studies of parents and children after a divorce conclude that children cope better when both parents play an active role in the children’s lives.

One of the best explanations of how custody determinations are made in California is the chapter on “Child Custody” in Judge Stewart’s Divorce Handbook for California. We urge you to read this chapter for more information.

 

Tools to Help Kids Cope with Divorce

The youngest members of the family can sometimes be overlooked in the midst of the divorce transition. Often, they sense and understand far more than parents may realize. It can be challenging talking to preschoolers and young children about your divorce in a reassuring and comforting manner. Fortunately, there are some good resources available to help kids cope with divorce.

Kids’ Turn: (www.kidsturn.org) is a non-profit organization dedicated to helping children understand and cope with the confusing and often conflicting feelings that accompany divorce. Kids’ Turn offers six-week child-parent workshops for children ages 4-14 and their parents. The program is offered in various locations throughout the Bay Area, including San Mateo County. For more information, visit their website or call (800)392-9239.

Recommended Books for Young Children:

Two Homes by Claire Masurel

Mama and Daddy Bear’s Divorce by Cornelia Maude Spelman

The Un-Wedding by Babette Cole

Co-Parenting Tips to Remember

Conflicts between parents are likely to make children:

Feel tense, anxious, confused, disillusioned, fearful, insecure, vulnerable, embarrassed, and overly responsible;

Regress in development;

Withdraw or cling during transitions;

Develop long-term emotional and behavioral wounds; and Act out, i.e., throw temper tantrums, develop problems at school, or indulge in self-destructive behaviors.

Obvious as well as subtle conflict hurts children.

Parents must:

Stop blaming each other and avoid derogatory comments;

Reduce conflicts by changing behavior;

Take responsibility for their actions; and

Stop trying to get your child to take your side during or after the divorce proceedings.

One of the most valuable parenting tools is empathy for your child.

Talking with children in a healthy way means listening to their feelings and allowing them to love both parents.

Forgiveness will help both the parent and the child.

As long as parents try to win the divorce war, everyone will lose.

Therapy and parenting classes may help parents deal with their feelings.

 

When Your Kids Turn 18…

The California State Bar has published a very useful pamphlet explaining the rights and responsibilities that kick in when a child turns 18 (the age of majority in California). Norris and Robertson has these pamphlets, and we will be pleased to send you a copy (free of charge) upon request. We recommend that every parent (and every teenager) become familiar with the legal ramifications of reaching adulthood in California. Here are some of the rights (and responsibilities) teenagers acquire at age 18:

They can enter into legally enforceable contracts. This includes everything from buying real estate, and entering into leases, to purchasing a car, applying for credit cards, and opening bank accounts.

They can marry without a parent’s consent, and will be held to all the laws regulating responsibilities between spouses (like obligations to support the spouse for life’s necessities, and obligations to support children).

They can join the military without parental consent. All male U.S. citizens or male immigrants living in the U.S. must register with the Selective Service System within 30 days of their 18th birthday. A maximum fine of $250,000 and/or five years in prison can be imposed for failure to register. Also, registration is required for federal or state student aid.

They can sue or be sued in civil court—for such things as breach of contract, or tortious conduct (injuring a person or property).

If they commit a crime, they will no longer be dealt with by the juvenile justice system (with its heavy focus on rehabilitation). Instead, they will face the far more serious penalties in adult court.

They can make wills or trusts, and they can inherit property outright in their own names.

They can consent, or withhold consent, to medical treatment.

The foregoing are just some of the important legal consequences of turning 18. The State Bar pamphlet is filled with more detailed information: laws related to driving, rental agreements, disturbing the peace, alcohol and drugs, contracts, banking and check matters, employment issues, taxes, sexual assault and date rape, registering to vote, marital obligations, domestic violence, smoking, consequences of criminal activity, guns and other weapons, internet facts, identity protection, and consumer protection.

 

Children’s Passports

If you are planning to travel out of the country with your children, here are some things you need to be aware of, given heightened security measures and concerns over child abductions.

If you do not have passports for your children, apply as early as possible. Many parents experience delays because of new rules about presenting proper documentation.

Since 2004, children must appear in person for a passport application, and the consent of both parents must be given. Both parents have to appear with the children, or written permission has to be given by the absent parent, or proof has to be submitted that permission is not necessary (such as a court decree of sole custody). For a sample form letter giving permission by the absent parent, go to the State Department’s travel site: www.travel.state.gov and click on Passports.

You will also need to prove the child’s nationality and relationship to you. So you will need a certified copy of the child’s birth certificate, or some other proof of citizenship (such as a prior passport).

You will also need to present evidence of your own identity (such as your own passport). There are also, of course, the usual long-standing requirements of photos, fees, etc.

Be sure to start early because navigating the bureaucratic process, and getting together and presenting all the necessary documents, can be time consuming.

 

When is a Custody Order “Final”?

There is a lot of confusion about this, especially since the appellate court decision in a case called Montenegro. This decision says that a custody case is not final, even after settlement or trial, unless it is absolutely clear from the language and terms of the order that it is intended to be final.

What this means is that if there is anything left to be legally determined in the future vis-à-vis custody or visitation or parenting issues, the order is not considered “final” within the meaning of the law. So, for example, if the order provides that there is to be a review at some designated time in the future, or some future “fine tuning” of the order, or some issues left to be resolved later, the order is not final.

In reality, no custody or visitation orders are truly final. They are always modifiable (i.e., either parent can go back to court to request changes) throughout the child’s minority. If the initial order meets the Montenegro finality test, however, the parent wanting a later modification has to prove two things: that there has been a change of circumstances since the initial order; and that a weighing of the child’s “best interests” tips the scales in favor of modification. If the initial order is not “final” under Montenegro, the parent wanting to modify it has to show that the “best interests” of the child warrant a modification, but no change of circumstances has to be shown.

What about the passage of time? As the child gets older, is this a changed circumstance even for final orders under Montenegro? Do new school commitments qualify? New social maturity? Emotional development? Maturing feelings about parents, siblings, etc? This is a gray area, with no clear answer. If a modification case goes to court, the judge has to look at all the facts, on a case-by-case basis, to decide.

This is an area of the law that has many shades of gray. The underpinning of it all, though, is that the focus of the law and of judges is on what is best for the children.

 

Holidays and Visitation Schedules

  With autumn in the air, many people’s thoughts turn to the holidays coming up in the next few months.  Separated or divorced parents who do not already have a clear-cut visitation schedule should start giving some thought to who the children will be with and when during the holiday season.  It can be difficult to work out the arrangements with your ex, especially for those who are newly separated or divorced.  But as you establish predictable visitation patterns over the years, it should get easier with time. 

Flexibility is important.  While our clients are often upset when the other parent does not show up at the appointed time, requests frequent schedule-changes, and so on, remember: what is “legally” required is not always what is best. Most experts agree that children benefit from frequent contact with both parents.  Therefore, even though your ex may request time on a weekend that is not “his” or “hers,” or may miss a weekend that is, if you can be flexible and accommodate the request, your children benefit in the long run.  Resist the temptation to pit yourself against your ex in a contest as to who is “right:” this can only exacerbate the conflict, and your ex is not likely to change no matter how many times you point out his or her deficiencies.  An additional factor to consider is that your children witness you being reasonable, flexible and accommodating, and over time, they will learn to behave in a similarly mature manner.  In other words, “more is caught than taught.”

Of course, if the schedule-changes happen too frequently, creating too much inconvenience and unpredictability, then you may need to go back to court to fine-tune the visitation arrangement, include provisions for no-shows and last-minute requests for changes, or reduce visitation; whatever is appropriate in your situation.  While clients often want to punish their ex-spouse for these types of scheduling violations, only in the most extreme cases, for example where the other parent forcibly takes the child on non-scheduled time and under distressing circumstances for the child, would we advise filing a contempt motion. 

Your new family structure means that you will need to do more advance planning than you did when you all lived together.  You may have a stepparent, significant other, or stepchildren to consider, as well.  To avoid last-minute chaos and mishaps, communicate early and often with your ex about what the holiday plans will be.  Don’t forget to take into consideration early school dismissals, holiday traffic and the like.

Avoid putting your children in the middle.  For older children, include them in the planning process and take their wishes into consideration, but make it clear to them that nothing is set it stone until you and your ex make sure it works for everybody.  This is another way in which you can teach your children how to work collaboratively by modeling such behavior for them.

 

What About the Grandparents?

We are sometimes asked whether a child’s grandparents have any rights to visitation with their grandchildren. In California divorce situations, if a grandparent petitions the court for visitation, the court may grant the grandparent reasonable visitation rights if the court both: (1) finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child, and (2) balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.  However, there is a rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child if the natural or adoptive parents agree that the grandparent should not be granted visitation rights.  Ditto if a parent who has been awarded sole legal and physical custody of the child, or with whom the child resides if there is currently no operative custody order, objects to visitation by the grandparent.

 

Kids’ Turn

We recommend highly an organization called Kids’ Turn, which offers programs in a number of locations in the Bay Area.  Its programs are designed to help children whose families are undergoing reorganization due to separation, divorce, or remarriage, and includes parents who never married as well as those who never lived together.  The groups and workshops offer education and support, not therapy.

Here are some of the workshops that Kids’ Turn offers:

Parent-Child Workshops:  For parents and their children, ages 4-17.  This workshop requires a six week commitment, usually on a week-day evening or a Saturday morning.  At least one parent must register, although both parents are encouraged to attend.  Children enroll in age-appropriate groups, and there are two parent groups enabling separating parents to participate in different settings.

Grandparent Workshops:  For grandparents who want to support their grandchildren during parental separation.  This is also offered for grandparents of grandchildren whose parents never married or never lived together. 

Next Steps Workshop:  A four-week workshop designed to help families transitioning into step-family configuration.  Parents, children, step-parents, step-siblings, and new partners of parents are encouraged to attend to learn tools to enhance communication, and strengthen relationships within the stepfamily.

Early Years Workshop (parents only):  For parents of very young children, ages 0-5.  The curriculum is designed to help parents understand the impact of family reorganization on their young children, especially at a time when children developmentally need to attach to their family members.  It teaches parents skills for promoting healthy development through cooperative parenting.

Non-Violent Family Skills Program:  Designed to help parents learn to manage their family lives with reduced violence, by helping parents understand the impact of a violent environment on children and to teach parents new parenting skills.

All of the parents’ and children’s workshops are led by qualified professionals with backgrounds in education or mental health. 

We at Norris Family Law strongly support Kids’ Turn; their programs have been immensely helpful to our clients and their children.

For more information contact www.kidsturn.org.