child custody procedure Archives - Lonich Patton Ehrlich Policastri

Child Custody, How SCCSC Judge Dealt with COVID-19 Rule

April 22, 2020/in Family Law, News /by Gretchen Boger

What Parents with a Disability Need to be Aware of in a Divorce

June 1, 2017/in Family Law /by Michael Lonich

Parenting while going through a divorce is hard, but also having a disability adds a new level of complexity that makes it is easy to feel overwhelmed and deflated. This is why it is so important to have a competent lawyer who will advocate for your parentage rights effectively and with care.

The thought of having parentage rights taken away will make any parent’s heart drop. But the chances of a disabled parent facing this nightmare is almost a guarantee. According to the National Council on Disabilities the removal rates of children from disabled parents are dispiriting. For children with psychiatric disabled parents the removal rates were between 70% and 80%; parents with intellectual disabilities were 80%; and parents with physical or sensory disabilities experienced high removal rates and loss of parental rights, as well.

If you are a disabled parent facing divorce or a child custody battle, it is important to find a lawyer who is sympathetic to your situation, who understands your condition, and will be effective in their advocacy for you. This is crucial because there are many unfortunate challenges a disabled parent can face in court.

Disabled parents may experience bias or speculation regarding best interest determinants. When dealing with a child, the court’s main objective is to produce a result that is in the child’s best interest; and a parent’s disability will be considered.

There is also a “no harm” requirement when determining a child’s best interest scenario, where the court factors the mental and physical health of all individuals involved to determine if there is a potential chance for harm to occur to the child. With this requirement, there is no obligation to show that the parent’s disability is actually causing, or will cause, any harm to the child or their environment. This can clearly disfavor any parent dealing with a disability.

If you are a parent who has a disability and is facing a divorce or custody battle, securing knowledgeable and effective counsel is imperative. There are a few key characteristics you should look for your future lawyer.

Of course, a knowledgeable lawyer in family law and child custody is a must, but you also want one who will focus on your parenting abilities and strengths. Your attorney needs to understand the specifics of your diagnosis in order to better advise and understand you. By being knowledgeable on your disability’s characteristics your lawyer will be more equipped to advocate on your parenting strengths and abilities. Finally, you want to find a lawyer who apprehends the benefits and pitfalls of various parental evaluations. Overall, your lawyer should give you assurance that your parental rights are protected and that you are given a fair opportunity to raise your child.

If you are considering a divorce or legal separation and would like more information about child custody and parental disability, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Loss of Parental Rights = Loss of Standing in Proceedings Concerning the Child

January 4, 2012/in Family Law /by Gina Policastri

Once a parent has acquiesced to a termination of parental rights, he or she has no remaining legal interest in the child’s affairs. This means the parent also does not have standing to appeal orders relating to the child’s placement. A recent California Supreme Case affirmed this rule.

In In re K.C., 52 Cal. 4th 231 (2011), K.C. was one of eight siblings, two of whom were deceased and the other five of whom were placed with grandparents after separate juvenile dependency proceedings resulting in the termination of Mother’s and Father’s parental rights as to the five siblings. While an infant, K.C. was removed from his mother’s custody and placed with a foster family who wished to adopt him. K.C.’s grandparents petitioned for K.C. to be placed with them, however, the child services agency doubted their ability to care for a sixth child and was concerned with the parents’ continued access to the kids. Father did not object to the termination of his parental rights and supported Grandparent’s request. The trial court denied Grandparents’ petition and they failed to timely appeal. Instead, Father appealed the order. However, he did not object to the judgment terminating his parental rights but limited his argument to the issue of K.C.’s placement.

On appeal, the Fifth District Court of Appeal dismissed Father’s appeal and held that Father could not show that the placement decision affected his parental rights and he thus was not aggrieved by the decision. The California Supreme Court affirmed this decision. Only an aggrieved person has standing to appeal, otherwise the party does not have rights or interests injuriously affected by the decision in an immediate and substantial way. Since Father acquiesced to the termination of his parental rights, he relinquished the only interest in K.C. that could render him an aggrieved party.

Throughout child custody or parental termination proceedings, proper objections must be made if a parent does not want to risk losing standing to appeal judgments concerning the child. The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex child custody and divorce issues. If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Relocation and Child Custody

September 14, 2011/in Family Law /by Mitchell Ehrlich

When parents share joint custody of their children, one party’s desire or need to relocate can require reevaluation of existing custody orders and can be an extremely complicated issue.

Recently, the California Court of Appeal for the Third District addressed a “move-away” issue in a case involving an unmarried couple and their minor daughter. After the parties’ relationship ended in December 2007, the mother moved to Washington with the child, then later returned to California. Upon her return, the father petitioned for custody of their daughter; in response, the mother filed a motion requesting permission to move back to Washington with their daughter. The trial court granted the parents joint legal and physical custody and denied mother’s request to move with the child. Thereafter, mother requested to move to Washington with the child several more times. At trial, she testified that she was moving to Washington because she had a job prospect and family support there. However, the court apparently did not believe that she would move without her daughter, and denied mother’s request to move with the child because it thought it would be disruptive to the child to leave her father and friends. Therefore, the prior joint custody order remained in place. It was impossible for mother to comply with the joint physical custody order if she moved to Washington, and therefore, the court’s decision effectively prohibited her from moving even without her daughter. The mother appealed and the appellate court found that the trial court order amounted to a coercive attempt to get the mother to change her plans to move. The court does not have the ability to prohibit a parent from moving, only to determine where the child should live as a result of the parent’s decision to move. They reversed and remanded the decision for reconsideration.

The appellate court noted that in joint custody cases, when a parent is considering a move that makes the existing custody plan unworkable, the court must consider the child’s best interests de novo and make a determination of what physical custody arrangement would be in the child’s best interests- either relocating with the moving parent or remaining with the non-moving parent and having visits with the moving parent. Then, the court must fashion an appropriate parenting plan that takes into account the fact that the parents live in separate states.

Jacob A. v. C.H., 196 Cal. App. 4th 1591 (2011).

The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed custody issues like this one. If you are contemplating moving and have joint custody of your child, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in-depth analysis of your issues. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Actor Jon Cryer Ordered to Continue Child Support Payments Despite Having Primary Custody

September 12, 2011/in Family Law /by Gina Policastri

“Two and a Half Men” television show actor Jon Cryer pays his former wife a hefty $8,000 per month in child support, even though he has close to full custody of their son. Cryer has 96% of the parenting time while Sarah Trigger Cryer only has 4%.

The two married in 2000 and divorced four years later. Sarah, also an actor, has not had a job since 2005 and is not inclined to look for work. Jon and Sarah each remarried and Sarah had a second child. Following a divorce from her second Husband, Sarah had custody of both her children when, in 2009, the two boys were removed from her after she was accused of being an unfit parent by Jon for leaving their son unsupervised, admonished by the court for negligent parenting, and allowed her second child to be injured while under her care. Jon was awarded physical custody of their son.

Thereafter, Jon requested a reduction of his child support payments from $10,000 per month to zero, as he was now the sole custodial parent. However, the trial court simply lowered the payments to $8,000 per month. On appeal, the court determined that despite Jon’s increased timeshare, any further reduction would be against the best interests of their child and have a detrimental effect, pointing to the fact that Sarah was in the process of reunifying with their son, and that a reduction in support would not allow her to maintain the home that their son would eventually return to once they were fully reunified.

Child support and child custody issues are difficult and complicated. The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed child support issues. If you are involved in a contested child support case, contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization.

Kelsey Grammer wants to split siblings in divorce- Not entirely unprecedented

June 9, 2011/in Family Law /by Mitchell Ehrlich

Media outlets reported that actor Kelsey Grammer, who is embroiled in a contentious divorce with his third wife Camille Grammer, put together a proposal in which the parties would live in separate parts of the country (he in Chicago, Camille in California) and they would each have primary custody of one of their two children; splitting up the siblings.

While not entirely unprecedented, it would be difficult for Mr. Grammer to convince a judge or custody evaluator that it would serve the children’s best interests to split up their two children and have each live thousands of miles apart.

In fact, based on the appellate court decision in Marriage of Williams (2001) 88 Cal. App. 4th 808, Mr. Grammer is unlikely to prevail. In Williams, the court held that California policy affords strong protection to sibling relationships and that—absent compelling circumstances, such as extraordinary emotional, medical or educational needs—an order separating siblings between custodial households ordinarily will be reversed as detrimental to the children’s best interest.

While Mr. Grammer’s arguments in favor of splitting up the siblings are not known, he would face a difficult challenge in this instance.

The Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed custody issues. If you are in the midst of a custody dispute involving multiple children or if one might arise soon and you are concerned about the possibility of your children being separated from his or her siblings, please contact the Certified Family Law Specialists at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues.

Santa Clara County Custody & Visitation Process: Part II

March 9, 2011/in Family Law /by Julia Lemon

A previous blog posting provided a general outline of Santa Clara County’s approach to the child custody and visitation procedure that occurs when a couple is divorcing or seeking a legal separation. In the second half of this series, the discussion will focus on the phase of the custody process after the Judicial Custody Conference (JCC) is completed.

If the parents are able to reach an agreement during the JCC, they memorialize it in a written agreement and the custody/visitation portion of the case has been settled. However, if the parties do not reach an agreement, the judge may refer the parties to an assessment or evaluation with Family Court Services, or may set the case for trial.

If the parties are referred to an evaluation or assessment, Family Court Services or a private evaluator will interview the spouses, the spouses’ attorneys, and may choose to interview the children or other relevant individuals. The contents of the evaluation reports are kept confidential and are only sent to the Court, attorneys, and self-represented parties. Afterwards, the evaluator submits recommendations to the judge. Any party may file and serve objections to the orders within 15 days of the mailing of the recommended order. If an objection is filed, attorneys, parties, and the evaluator are then required to attend a Custody Settlement Conference (CSC). The purpose of the CSC is to try to settle any remaining custody and visitation disputes. If an agreement is reached at this phase, the case is settled. If an agreement is not reached upon the conclusion of the CSC, the judge will set the case for trial.

For more information about the child custody and visitation process, please contact our San Jose child custody attorneys at Lonich Patton Erlich Policastri. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Santa Clara County Child Custody & Visitation Process: Part I

March 7, 2011/in Family Law /by Julia Lemon

In California, the procedure for deciding child custody and visitation issues in a family law case can vary slightly from county to county. This discrepancy is a result of the local court rules each county has in place. While the Santa Clara County child custody and visitation procedure may differ slightly depending on the particulars of a case, a general outline of the process is detailed below.

In Santa Clara County, if custody/visitation are contested, the child custody and visitation process begins when one parent files an Order to Show Cause (OSC). An OSC is a court order that requires the other parent to appear in court. After an OSC is filed, a hearing date is set. In addition, the parties are also ordered to sign up for a mediation date and a parent orientation class.

At the initial hearing on the moving party’s OSC, the judge may issue temporary custody/visitation orders at the initial hearing. In addition, in every case with contested custody/visitation issues, the parties must attend a parent orientation class. Parent orientation is a mandatory class that briefs parents about the child custody process, mediation, and proper behavior during the process. Next, the parents attend mediation. The purpose of mediation is to reduce any conflict that exists between the parties. In addition, it serves to give the parties the time to develop a mutually satisfactory custody and visitation agreement. If a successful full or partial agreement is reached, the mediator drafts the agreement into a written document. The mediator then sends the written document to the parties. Either spouse may object to the agreement by timely serving a written objection to the other party. If an objection is served, the case proceeds to a Judicial Custody Conference (JCC). If no objection is served, the mediated agreement becomes a custody order. If no agreement is reached during mediation and the mediator feels further mediation would be fruitless, the mediator will refer the parties to a Judicial Custody Conference (JCC).

A JCC is conference between the parties and the judge assigned to the case. During the conference, the judge does not make orders. Instead, the judge helps the parties reach a settlement by weighing in on the remaining custody or visitation disputes.

For information about the remainder of the Custody and Visitation Process in Santa Clara County, please see the upcoming Part II of this blog series. If you are considering a divorce, please contact our firm for more information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Posts