When a marriage union comes to an end, often times the married or unmarried couple have a child or children. Often times, due to the animosity and stress of a divorce or separation, one spouse or both, use the children as pawns against the other. Such conduct can often be described as “detrimental” and may cause irreparable harm to the children.
It is stressful enough already that the children are also going through a “divorce;” alienation, misconduct, anger, and other such types of behavior have prompted the State of California to legislate laws in order to protect children.
Not only is the California Family Code applicable to children in marriages, it is also equally applicable to non-married parents under the Uniform Parentage Act, Fam C §§7600-7730 et seq. The law is applied equally to Gay and transgender couples as well.
This article will discuss the “best interest” and “frequent and continuing contact” doctrines set out the California Family Code. It is extremely important to know what the law is in California regarding a parents’ duties and rights to their children. The law can often times be confusing and it is important to know when the rules are afforded due consideration.
The Child’s Best Interest Legal Standard.
The broad legal standard that governs a court’s decisions in matters of custody and visitation is the best interest of the child. Fam C §3011. The standard is “an elusive guideline that belies rigid definition.” Its purpose is to maximize a child’s opportunity to develop into a stable, well adjusted adult. Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1263, 284 Cal.Rptr. 18.
The “best interest” standard is a relative one. The question is not whether a particular set of circumstances is in the best interest of the child, but whether a particular set of circumstances in relation to an alternative set of circumstances is in the best interest of the child. 232 Cal.App.3d at 1264. The court must consider the following factors in determining the child’s best interest (Fam C §3011(a)–(d)):
a. The child’s health, safety, and welfare.
b. The nature and amount of the child’s contact with both parents;
c. History of drug or alcohol abuse;
d. History of abuse;
e. Any other factors the court deems relevant.
The court must weigh these factors and determine a child’s best interest solely from the child’s standpoint. The court should not consider the feelings and desires of the contesting parents except as they affect the child’s best interest. 232 Cal.App.3d at 1264.
It is noted that when parents bring a custody and visitation issue to the court; the parties are mandated to attend custody counseling. The State legislature has mandated this procedure because superior court judges are not schooled in psychology, mental health, or family and marital therapy. Fam C §§3160-61.
The purpose of the custody counseling, formerly called “mediation,” is to assist the parents in arriving at a custody and visitation plan to reduce acrimony between the parties. A superior court judge will often defer to the custody counselor, usually a trained mental health professional, if no agreement between the parties.
The court must grant a parent reasonable visitation rights unless it is shown that such visitation would be detrimental to the best interest of the child. Fam C §3100(a).
Most often, one parent is resentful towards the other parent and will attempt to seek orders alienating the other parent from contact with the children. Orders that conflict with a parents visiting time with their children are highly suspect and subject to scrutiny:
Note, noncustodial parents with court-ordered visitation rights have a liberty interest in the companionship, care, custody, and management of their children. Brittain v Hansen (9th Cir 2006) 451 F3d 982, 992; U.S. Constitution, 14th Amendment, Due Process and Equal Protection Clauses, see strict scrutiny analysis, infra. In this case, the federal district court held that a parent could bring a federal court action against government agents, and perhaps private individuals, for interfering with parental rights.
A parent’s fundamental liberty interest to raise his or her children without undue state interference is also protected by Article 1, section 1 of the California Constitution.
“the interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights.” In re B. G. (1974) 11 Cal.3d 679, 688 [114 Cal. Rptr. 444, 523 P.2d 244]; see also In re Carmaleta B. (1978) 21 Cal.3d 482, 489 [146 Cal. Rptr. 623, 579 P.2d 514] [“Parenting is a fundamental right”].
It has also long been held, however, that “the rights of parenthood are not absolute, but subject to the superior right of the state to intervene and protect the child against abuse of parental authority.” Odell v. Lutz (1947) 78 Cal. App. 2d 104, 106 [177 P.2d 628].
“Although a fundamental interest may be involved, both the United States Supreme Court and [the California Supreme Court] have recognized that not every limitation or incidental burden on a fundamental right is subject to the strict scrutiny standard. When the regulation merely has an incidental effect on exercise of protected rights, strict scrutiny is not applied. [Citations.] It is only when there exists a real and appreciable impact on, or a significant interference with the exercise of the fundamental right that the strict scrutiny doctrine will be applied.” Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 47 [157 Cal. Rptr. 855, 599 P.2d 46].
It is serious circumstances when a parent, or the State of California, unduly interfere with a parent’s companionship, care, custody, and management of their children. The rule is “appreciable” or “significant” interference with parenting. Parenting is a fundamental right in our nation and protected by both the U.S. and California Constitutions. “Strict” scrutiny means that a law, regulation, or order must be narrowly tailored to meet the state’s compelling interest in protecting children. However, no visitation is not the standard and is therefore unlawful on a whole host of legal theories.
An enacted law must be “facially” valid in order to meet the “strict” scrutiny standard. I have seen that the State of California has taken great care here to meet constitutionally mandated criteria in striking a balance between the “best interest” rule and a parent’s fundamental rights to parenting. However, problems most often arise in the “application” of the regulation, order, or rule.
Frequest and Continuing Contact.
Frequent and continuing contact is a factor that cannot be ruled out by the “best interest” standard. Fam Code §3020 (b); see Fam Code §3011. In other words, it would be highly illegal and wrong for a “no contact” or “no visitation” order to issue from the court, or, for a party to seek such. The circumstances where contact would be detrimental to a minor child and not in their best interest are extremely rare.
Often times an alienating parent will lodge false complaints against the other parent in order to limit or achieve this no contact circumstance. It is not too hard to see that such a parent who engages in such conduct is not in the “best interest” of the minor child.
What is the Changed Circumstance Rule.
The changed circumstance rule applies only when there has been a final judicial determination of custody whether established by the parties’ agreement, default judgment, or litigation. Montenegro v Diaz (2001) 26 Cal.4th 249, 256, 109 Cal.Rptr.2d 575; Burchard v Garay (1986) 42 Cal.3d 531, 535, 229 Cal.Rptr. 800.
See Marriage of Rose & Richardson (2002) 102 Cal.App.4th 941, 950– 953, 126 Cal.Rptr.2d 45 (judgment reciting that the parties would meet with a therapist or counselor to resolve custody and visitation issues and, if unsuccessful, would make appointment with Conciliation Court before filing a request for hearing, was not intended to be final custody determination).
What this means is when the issues of custody and visitation have been litigated at a full adversarial hearing on those issues, called a long-cause or trial; in order to go back and change that judgment on the custody and visitation issues, a party must meet the “changed circumstances” criteria. That means that the change must be material; i.e. child abuse or neglect, drug abuse, or incarceration of the other parent. The court may consider attempts by one party to interfere with the other party’s regular contact with the child. Fam C §3046 (b).
See Keith R. v. Superior Court, (2009) 174 Cal.App.4th 1047; 96 Cal. Rptr.3d 298. There, the trial court applied the changed circumstances standard and made no determinations as to the child’s best interest. The appeal court held that the trial court erred in applying the changed circumstances standard because there had been no final judicial custody determination. A peremptory writ was proper. Ibid. 1055. Here the superior court made the wrong determination as to visitation. The appeal court remanded the matter back ordering the court to change it’s order and make the correct determination.
A party’s intent to move to another location can be a factor in an award of custody or modification of custody. Often times, one party may harbor animosity and dislike for a parent and want to move to another location out of the same county or perhaps to another State.
A parent has an absolute obligation to notice the other parent of their intent to move away. Fam C §3024; 45-day move away notice.
See Marriage of LaMusga (2004) 32 Cal.4th 1072, 1094, 12 Cal.Rptr.3d 356 (move-away decision so detrimental to father-child relationship that change in custody was mandated. Contra Costa County California Superior Court matter.)
If you are faced with a difficult custody and visitation matter, you need a highly skilled family law attorney on your side. The effects on your children are irreversible. A parent cannot go back in time.
Robert Rodriguez, Attorney at law
Robert Rodriguez has conferred with dozens of mental health professionals, psychologists, and doctors on the issues discussed here.
Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.
* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California. Robert Rodriguez has practiced in the State of California Court of Appeal.
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