child custody Archives - Page 5 of 6 - Lonich Patton Ehrlich Policastri

Why You Should Get Clean: Your History of Drug or Alcohol Abuse Can Affect Your Child Custody or Visitation Rights

March 24, 2011/1 Comment/in Family Law /by Mitchell Ehrlich

California family law requires that before child custody and visitation orders are made, a judge must take into consideration what is in the child’s best interest. When a judge is considering what is in the child’s best interest, he or she may look at any factors that are relevant. In addition, the judge must consider the child’s health, safety, welfare, history of physical abuse, and either parent’s habitual drug use. If you are a parent with a substance abuse problem, it is very important that you obtain treatment for this problem so that you can provide a safe and stable environment for your children.

Before a court considers allegations accusing a parent of drug or alcohol abuse, the court may require “independent corroboration.” This means the court may want to see written reports from law enforcement, courts, probation departments, social welfare agencies, or drug rehabilitation centers. In addition, the court may order a parent seeking custody or visitation to undergo drug or alcohol testing. The court may also require the parent who is tested to cover the costs of the testing.

Please contact us for more information about child custody and visitation rights and how issues of drug or alcohol abuse may affect those rights. 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.

What is “Sole Custody”?

March 17, 2011/in Family Law /by Mitchell Ehrlich

The term “sole custody” refers to one of California’s several types of child custody arrangements. A parent with “sole custody” may have sole physical custody, sole legal custody, or exclusive custody. Each type of custody arrangement has unique rights that attach to it.

If a parent has sole physical custody, he has exclusive physical custody of the child without having exclusive legal custody. This means that the parent with the sole physical custody has the right to have the child live with him/her, subject to the other parent’s visitation rights (if any). However, a custodial parent who only has sole physical custody is not entitled to make all the important decisions regarding the child.

On the other hand, a parent with sole legal custody is awarded exclusive rights and responsibilities regarding child care decisions relating to health, education, and welfare. However, unless sole physical custody is also granted, the parent does not have sole control over the child’s residence and supervision.

Exclusive custody is a combination of sole legal and sole physical custody. The parent with the exclusive custody has the right to make decisions regarding the child’s residence, health, education, and welfare. The non-custodial parent, however, may retain secondary visitation rights detailed by court order. In addition, an exclusive custody order does not terminate the other parent’s parental rights or due process interest in parenting. The parent without exclusive custody retains the right to seek and obtain custody modification based on a proper showing of changed circumstances.

Please contact our child custody attorneys at Lonich Patton Erlich Policastri 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.

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.

Key Tips for Amicable Co-Parenting With Your Ex-Spouse

February 10, 2011/in Family Law /by David Patton

Divorces can be very stressful times when soon-to-be-ex spouses are harboring resentment and anger towards one another. At the end of a divorce, the question remains, how do resentful ex-spouses work together to raise children? An article published by CBS earlier this year discusses the answer to this question by providing various tips for helping divorced parents effectively and cordially co-parent their children.

The first tip is simply to be respectful. As divorced couples share time with their children, it is very important to treat the other spouse with respect and model positive conflict resolution for your children to observe. Tearing your ex-partner down will only cause conflict and can cause your child to start harboring resentment.

The second tip involves keeping the kids out of the conflict. Remember, they did not ask to be put in this situation so you should not make them choose sides. In addition, don’t put your child in the position of being a messenger. This is confusing for the child and can affect their feelings toward either parent.

The last tip focuses on maintaining good communication. It is important to commit to sharing information with your Ex-spouse about your children and checking in on what is going on in their lives when they are not in your home. Also, it is good to communicate so that you maintain consistency in both homes in order to make your children’s transition much easier. For the full article please visit CBS.

For more information about California divorces, please contact us. 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.

What Does “Joint Custody” Mean?

February 9, 2011/in Family Law /by Gina Policastri

“Joint custody” is a complex legal term that can have several meanings. The term may refer to one of California’s several types of child custody arrangements including “pure” joint custody, joint legal custody, or joint physical custody. Each different joint custody arrangement has separate rights attached to it.

First, “pure” joint custody refers to an arrangement where neither parent has sole physical or legal custody of the child. This means that each parent has the equal right to control and supervise the child and to share custodial time with the child.

Second, joint legal custody exists where both parents share the rights and responsibilities of making decisions about the child’s health, education, and welfare. It is important to note that joint legal custody can be granted without granting joint physical custody. This means that one parent may have the right to have the child live with them (subject to the other parent’s visitation rights), while both parents share the responsibility for making important decisions regarding the child.

Third, joint physical custody exists where both parents have the right to have the child present in their home for significant periods of time. Physical custody may be shared so that the child is assured he/she will have continued and frequent contact with both parents.

For more information, please contact our San Jose child custody lawyers 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.

An Overview of California’s Supervised Visitation Law

January 12, 2011/in Family Law /by Julia Lemon

Supervised visitation is judicial order for a neutral third party to be present when a child is spending time with his/her parent. When making a supervised visitation order, a judge may consider a wide variety of factors and goals. Some of the reasons a judge may order supervised visitation include giving the parent time to deal with specific issues, helping reintroduce a parent to a child after a long absence, introducing the parent to the child when there has been no prior relationship, avoiding potential domestic abuse or neglect, or if there is a threat of abduction.

If you think that supervised visitation may be in your child’s best interest, please contact the well-informed child custody lawyers at Lonich Patton Erlich Policastri 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.

Visitation Rights May be Affected by One Parent’s Decision to Move Out of the Area

December 17, 2010/in Family Law /by David Patton

Parental custody and visitation can be a contentious issue in divorce proceedings. In general, the court will grant the noncustodial parent reasonable visitation rights unless it is shown that visitation would be detrimental to the child. Whether you have visitation rights or primary custody of your children, you should be aware of the implication a change in residence may have on your responsibilities to your children and your ex-spouse.

For example, if you have primary custody of the children and live near your ex-spouse and you decide to move away with your children, your responsibility for ensuring your ex-partner continues to have reasonable visitation rights will increase. The court has broad discretion to modify visitation orders to lessen the impact of the loss of contact with the non-custodial parent in these situations. For example, the court may choose to increase visitation rights for the non-custodial parent during school vacations. The court could choose to allocate the financial burden for paying for the children’s travel costs to you. The court could also deny the custodial parent the right to move at all.

However, let’s assume you have primary custody and your ex-spouse decides to move out of the area. In this case, the court may decide to modify the visitation schedule to provide for longer, but less frequent, visitation periods.

If you are interested in learning more about California custody and visitation, please contact us. 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.

Sperm Donor Parental Status in California

December 17, 2010/in Family Law /by Julia Lemon

As artificial insemination and in vitro fertilization technology continues to rapidly develop, California law has been struggling to keep up with the times. Specifically, it is becoming increasingly important to protect the rights of mothers who conceive using donor sperm.

To date, the California Family Code has partially addressed this issue. The Family Code provides that a donor who has provided semen to a sperm bank, or to a licensed physician for insemination of a woman, is treated by the law as if he were not the natural father of the child conceived as a result. A recent news story illustrates the importance of the continued development of family law in relation to sperm and egg donation and usage.

Karen B., a writer in Los Angeles, California was looking for a sperm donor to help her start her family. She met the man who would become her sperm donor, Daniel C., on Craiglist after first seeking a donor among her group of close friends. Initially, they agreed that she would retain custody and would make all the parenting decisions while the donor would have visitation privileges. However, after Karen already became pregnant, Daniel began forcing himself into Karen’s life and sought custody rights. The court ruled in favor of Karen’s parental rights, but granted Daniel with twice monthly visitation privileges. However, because of this informal arrangement, Karen lives in fear that Daniel might someday abduct the child to his native Brazil. For the full article see ABC news.

As this particular story illustrates, it is important that California family law continue to develop to protect the parental status, custody, and visitation rights of parents and donors who enter into agreements to conceive a child. In addition, it is of utmost importance that the law continues to expand to serve the primary function of ensuring the safety, stability, and mental health of the child.

For more information about sperm donor rights, please contact us. 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.

Family and Other Close Relationships Can Impact Your Child Custody Rights

December 9, 2010/in Family Law /by Mitchell Ehrlich

Just recently, the mother of a one year old boy was stripped of her custody rights after her child was shot in her own home. The boy was accidentally shot by his 19-year old uncle. The child survived and is now on the road to recovery. Meanwhile, the father has been awarded custody and the mother has visitation rights.

In the recent court decision surrounding this case, the court was hesitant to make a final award of custody to the mother due to concerns over whether Escalante is capable of protecting her son against the shooter. She contends she has had no contact with the 19 year old and has changed her phone number. In addition, Escalante has completed court required parenting classes. To see the full article go to MSNBC .

This case is a prime example of how one horrific accident that was not directly caused by a parent, can dramatically impact that parent’s custody rights. If you are in the midst of a disputed custody case, keep in mind that the outcome of the case can be affected by the type of the individuals to whom you choose to expose your children. A court will consider a variety of issues when determining custody, including fitness of each parent and the type of environment the child will experience.

For more information on how to prepare yourself for a custody battle, 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.

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