I think that you need to be aware of what your state's laws are concerning the custody of your child and what is considered, here below is CA's statutes :
http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=fam
FAMILY.CODE
SECTION 3020-3032
3020. (a) The Legislature finds and declares that it is the public
policy of this state to assure that the health, safety, and welfare
of children shall be the court's primary concern in determining the
best interest of children when making any orders regarding the
physical or legal custody or visitation of children. The Legislature
further finds and declares that the perpetration of child abuse or
domestic violence in a household where a child resides is detrimental
to the child.
(b) The Legislature finds and declares that it is the public
policy of this state to assure that children have frequent and
continuing contact with both parents after the parents have separated
or dissolved their marriage, or ended their relationship, and to
encourage parents to share the rights and responsibilities of child
rearing in order to effect this policy, except where the contact
would not be in the best interest of the child, as provided in
Section 3011.
(c) Where the policies set forth in subdivisions (a) and (b) of
this section are in conflict, any court's order regarding physical or
legal custody or visitation shall be made in a manner that ensures
the health, safety, and welfare of the child and the safety of all
family members.
3021. This part applies in any of the following:
(a) A proceeding for dissolution of marriage.
(b) A proceeding for nullity of marriage.
(c) A proceeding for legal separation of the parties.
(d) An action for exclusive custody pursuant to Section 3120.
(e) A proceeding to determine physical or legal custody or for
visitation in a proceeding pursuant to the Domestic Violence
Prevention Act (Division 10 (commencing with Section 6200)).
In an action under Section 6323, nothing in this subdivision shall
be construed to authorize physical or legal custody, or visitation
rights, to be granted to any party to a Domestic Violence Prevention
Act proceeding who has not established a parent and child
relationship pursuant to paragraph (2) of subdivision (a) of Section
6323.
(f) A proceeding to determine physical or legal custody or
visitation in an action pursuant to the Uniform Parentage Act (Part 3
(commencing with Section 7600) of Division 12).
(g) A proceeding to determine physical or legal custody or
visitation in an action brought by the district attorney pursuant to
Section 17404.
3022. The court may, during the pendency of a proceeding or at any
time thereafter, make an order for the custody of a child during
minority that seems necessary or proper.
3022.5. A motion by a parent for reconsideration of an existing
child custody order shall be granted if the motion is based on the
fact that the other parent was convicted of a crime in connection
with falsely accusing the moving parent of child abuse.
3023. (a) If custody of a minor child is the sole contested issue,
the case shall be given preference over other civil cases, except
matters to which special precedence may be given by law, for
assigning a trial date and shall be given an early hearing.
(b) If there is more than one contested issue and one of the
issues is the custody of a minor child, the court, as to the issue of
custody, shall order a separate trial. The separate trial shall be
given preference over other civil cases, except matters to which
special precedence may be given by law, for assigning a trial date.
3024. In making an order for custody, if the court does not
consider it inappropriate, the court may specify that a parent shall
notify the other parent if the parent plans to change the residence
of the child for more than 30 days, unless there is prior written
agreement to the removal. The notice shall be given before the
contemplated move, by mail, return receipt requested, postage
prepaid, to the last known address of the parent to be notified. A
copy of the notice shall also be sent to that parent's counsel of
record. To the extent feasible, the notice shall be provided within
a minimum of 45 days before the proposed change of residence so as to
allow time for mediation of a new agreement concerning custody.
This section does not affect orders made before January 1, 1989.
3025. Notwithstanding any other provision of law, access to records
and information pertaining to a minor child, including, but not
limited to, medical, dental, and school records, shall not be denied
to a parent because that parent is not the child's custodial parent.
3025.5. In any proceeding involving child custody or visitation
rights, if a report containing psychological evaluations of a child
or recommendations regarding custody of, or visitation with, a child
is submitted to the court, including, but not limited to, a report
created pursuant to Chapter 6 (commencing with Section 3110) of this
part, a recommendation made to the court pursuant to Section 3183,
and a written statement of issues and contentions pursuant to
subdivision (b) of Section 3151, that information shall be contained
in a document that shall be placed in the confidential portion of the
court file of the proceeding, and may not be disclosed, except to
the following persons:
(a) A party to the proceeding and his or her attorney.
(b) A federal or state law enforcement officer, judicial officer,
court employee, or family court facilitator for the county in which
the action was filed, or an employee or agent of that facilitator,
acting within the scope of his or her duties.
(c) Counsel appointed for the child pursuant to Section 3150.
(d) Any other person upon order of the court for good cause.
3026. Family reunification services shall not be ordered as a part
of a child custody or visitation rights proceeding. Nothing in this
section affects the applicability of Section 16507 of the Welfare and
Institutions Code.
3027. (a) If allegations of child sexual abuse are made during a
child custody proceeding and the court has concerns regarding the
child's safety, the court may take any reasonable, temporary steps as
the court, in its discretion, deems appropriate under the
circumstances to protect the child's safety until an investigation
can be completed. Nothing in this section shall affect the
applicability of Section 16504 or 16506 of the Welfare and
Institutions Code.
(b) If allegations of child sexual abuse are made during a child
custody proceeding, the court may request that the local child
welfare services agency conduct an investigation of the allegations
pursuant to Section 328 of the Welfare and Institutions Code. Upon
completion of the investigation, the agency shall report its findings
to the court.
3027.1. (a) If a court determines, based on the investigation
described in Section 3027 or other evidence presented to it, that an
accusation of child abuse or neglect made during a child custody
proceeding is false and the person making the accusation knew it to
be false at the time the accusation was made, the court may impose
reasonable money sanctions, not to exceed all costs incurred by the
party accused as a direct result of defending the accusation, and
reasonable attorney's fees incurred in recovering the sanctions,
against the person making the accusation. For the purposes of this
section, "person" includes a witness, a party, or a party's attorney.
(b) On motion by any person requesting sanctions under this
section, the court shall issue its order to show cause why the
requested sanctions should not be imposed. The order to show cause
shall be served on the person against whom the sanctions are sought
and a hearing thereon shall be scheduled by the court to be conducted
at least 15 days after the order is served.
(c) The remedy provided by this section is in addition to any
other remedy provided by law.
3027.5. (a) No parent shall be placed on supervised visitation, or
be denied custody of or visitation with his or her child, and no
custody or visitation rights shall be limited, solely because the
parent (1) lawfully reported suspected sexual abuse of the child, (2)
otherwise acted lawfully, based on a reasonable belief, to determine
if his or her child was the victim of sexual abuse, or (3) sought
treatment for the child from a licensed mental health professional
for suspected sexual abuse.
(b) The court may order supervised visitation or limit a parent's
custody or visitation if the court finds substantial evidence that
the parent, with the intent to interfere with the other parent's
lawful contact with the child, made a report of child sexual abuse,
during a child custody proceeding or at any other time, that he or
she knew was false at the time it was made. Any limitation of
custody or visitation, including an order for supervised visitation,
pursuant to this subdivision, or any statute regarding the making of
a false child abuse report, shall be imposed only after the court has
determined that the limitation is necessary to protect the health,
safety, and welfare of the child, and the court has considered the
state's policy of assuring that children have frequent and continuing
contact with both parents as declared in subdivision (b) of Section
3020.
3028. (a) The court may order financial compensation for periods
when a parent fails to assume the caretaker responsibility or when a
parent has been thwarted by the other parent when attempting to
exercise custody or visitation rights contemplated by a custody or
visitation order, including, but not limited to, an order for joint
physical custody, or by a written or oral agreement between the
parents.
(b) The compensation shall be limited to (1) the reasonable
expenses incurred for or on behalf of a child, resulting from the
other parent's failure to assume caretaker responsibility or (2) the
reasonable expenses incurred by a parent for or on behalf of a child,
resulting from the other parent's thwarting of the parent's efforts
to exercise custody or visitation rights. The expenses may include
the value of caretaker services but are not limited to the cost of
services provided by a third party during the relevant period.
(c) The compensation may be requested by noticed motion or an
order to show cause, which shall allege, under penalty of perjury,
(1) a minimum of one hundred dollars ($100) of expenses incurred or
(2) at least three occurrences of failure to exercise custody or
visitation rights or (3) at least three occurrences of the thwarting
of efforts to exercise custody or visitation rights within the six
months before filing of the motion or order.
(d) Attorney's fees shall be awarded to the prevailing party upon
a showing of the nonprevailing party's ability to pay as required by
Section 270.
3029. An order granting custody to a parent who is receiving, or in
the opinion of the court is likely to receive, assistance pursuant
to the Family Economic Security Act of 1982 (Chapter 2 (commencing
with Section 11200) of Part 3 of Division 9 of the Welfare and
Institutions Code) for the maintenance of the child shall include an
order pursuant to Chapter 2 (commencing with Section 4000) of Part 2
of Division 9 of this code, directing the noncustodial parent to pay
any amount necessary for the support of the child, to the extent of
the noncustodial parent's ability to pay.
3030. (a) (1) No person shall be granted physical or legal custody
of, or unsupervised visitation with, a child if the person is
required to be registered as a sex offender under Section 290 of the
Penal Code where the victim was a minor, or if the person has been
convicted under Section 273a, 273d, or 647.6 of the Penal Code,
unless the court finds that there is no significant risk to the child
and states its reasons in writing or on the record.
(2) No person shall be granted physical or legal custody of, or
unsupervised visitation with, a child if anyone residing in the
person's household is required, as a result of a felony conviction in
which the victim was a minor, to register as a sex offender under
Section 290 of the Penal Code, unless the court finds there is no
significant risk to the child and states its reasons in writing or on
the record.
(3) The fact that a child is permitted unsupervised contact with a
person who is required, as a result of a felony conviction in which
the victim was a minor, to be registered as a sex offender under
Section 290 of the Penal Code, shall be prima facie evidence that the
child is at significant risk. When making a determination regarding
significant risk to the child, the prima facie evidence shall
constitute a presumption affecting the burden of producing evidence.
However, this presumption shall not apply if there are factors
mitigating against its application, including whether the party
seeking custody or visitation is also required, as the result of a
felony conviction in which the victim was a minor, to register as a
sex offender under Section 290 of the Penal Code.
(b) No person shall be granted custody of, or visitation with, a
child if the person has been convicted under Section 261 of the Penal
Code and the child was conceived as a result of that violation.
(c) No person shall be granted custody of, or unsupervised
visitation with, a child if the person has been convicted of murder
in the first degree, as defined in Section 189 of the Penal Code, and
the victim of the murder was the other parent of the child who is
the subject of the order, unless the court finds that there is no
risk to the child's health, safety, and welfare, and states the
reasons for its finding in writing or on the record. In making its
finding, the court may consider, among other things, the following:
(1) The wishes of the child, if the child is of sufficient age and
capacity to reason so as to form an intelligent preference.
(2) Credible evidence that the convicted parent was a victim of
abuse, as defined in Section 6203, committed by the deceased parent.
That evidence may include, but is not limited to, written reports by
law enforcement agencies, child protective services or other social
welfare agencies, courts, medical facilities, or other public
agencies or private nonprofit organizations providing services to
victims of domestic abuse.
(3) Testimony of an expert witness, qualified under Section 1107
of the Evidence Code, that the convicted parent experiences intimate
partner battering.
Unless and until a custody or visitation order is issued pursuant
to this subdivision, no person shall permit or cause the child to
visit or remain in the custody of the convicted parent without the
consent of the child's custodian or legal guardian.
(d) The court may order child support that is to be paid by a
person subject to subdivision (a), (b), or (c) to be paid through the
local child support agency, as authorized by Section 4573 of the
Family Code and Division 17 (commencing with Section 17000) of this
code.
(e) The court shall not disclose, or cause to be disclosed, the
custodial parent's place of residence, place of employment, or the
child's school, unless the court finds that the disclosure would be
in the best interest of the child.
3030.5. (a) Upon the motion of one or both parents, or the legal
guardian or custodian, or upon the court's own motion, an order
granting physical or legal custody of, or unsupervised visitation
with, a child may be modified or terminated if either of the
following circumstances has occurred since the order was entered,
unless the court finds that there is no significant risk to the child
and states its reasons in writing or on the record:
(1) The person who has been granted physical or legal custody of,
or unsupervised visitation with the child is required, as a result of
a felony conviction in which the victim was a minor, to be
registered as a sex offender under Section 290 of the Penal Code.
(2) The person who has been granted physical or legal custody of,
or unsupervised visitation with, the child resides with another
person who is required, as a result of a felony conviction in which
the victim was a minor, to be registered as a sex offender under
Section 290 of the Penal Code.
(b) The fact that a child is permitted unsupervised contact with a
person who is required, as a result of a felony conviction in which
the victim was a minor, to be registered as a sex offender under
Section 290 of the Penal Code, shall be prima facie evidence that the
child is at significant risk. When making a determination regarding
significant risk to the child, the prima facie evidence shall
constitute a presumption affecting the burden of producing evidence.
However, this presumption shall not apply if there are factors
mitigating against its application, including whether the party
seeking custody or visitation is also required, as the result of a
felony conviction in which the victim was a minor, to register as a
sex offender under Section 290 of the Penal Code.
(c) The court shall not modify an existing custody or visitation
order upon the ex parte petition of one party pursuant to this
section without providing notice to the other party and an
opportunity to be heard. This notice provision applies only when the
motion for custody or visitation change is based solely on the fact
that the child is allowed unsupervised contact with a person
required, as a result of a felony conviction in which the victim was
a minor, to register as a sex offender under Section 290 of the Penal
Code and does not affect the court's ability to remove a child upon
an ex parte motion when there is a showing of immediate harm to the
child.
3031. (a) Where the court considers the issue of custody or
visitation the court is encouraged to make a reasonable effort to
ascertain whether or not any emergency protective order, protective
order, or other restraining order is in effect that concerns the
parties or the minor. The court is encouraged not to make a custody
or visitation order that is inconsistent with the emergency
protective order, protective order, or other restraining order,
unless the court makes both of the following findings:
(1) The custody or visitation order cannot be made consistent with
the emergency protective order, protective order, or other
restraining order.
(2) The custody or visitation order is in the best interest of the
minor.
(b) Whenever custody or visitation is granted to a parent in a
case in which domestic violence is alleged and an emergency
protective order, protective order, or other restraining order has
been issued, the custody or visitation order shall specify the time,
day, place, and manner of transfer of the child for custody or
visitation to limit the child's exposure to potential domestic
conflict or violence and to ensure the safety of all family members.
Where the court finds a party is staying in a place designated as a
shelter for victims of domestic violence or other confidential
location, the court's order for time, day, place, and manner of
transfer of the child for custody or visitation shall be designed to
prevent disclosure of the location of the shelter or other
confidential location.
(c) When making an order for custody or visitation in a case in
which domestic violence is alleged and an emergency protective order,
protective order, or other restraining order has been issued, the
court shall consider whether the best interest of the child, based
upon the circumstances of the case, requires that any custody or
visitation arrangement shall be limited to situations in which a
third person, specified by the court, is present, or whether custody
or visitation shall be suspended or denied.
3032. (a) The Judicial Council shall establish a state-funded
one-year pilot project beginning July 1, 1999, in at least two
counties, including Los Angeles County, pursuant to which, in any
child custody proceeding, including mediation proceedings pursuant to
Section 3170, any action or proceeding under Division 10 (commencing
with Section 6200), any action or proceeding under the Uniform
Parentage Act (Part 3 (commencing with Section 7600) of Division 12),
and any proceeding for dissolution or nullity of marriage or legal
separation of the parties in which a protective order as been granted
or is being sought pursuant to Section 6221, the court shall,
notwithstanding Section 68092 of the Government Code, appoint an
interpreter to interpret the proceedings at court expense, if both of
the following conditions are met:
(1) One or both of the parties is unable to participate fully in
the proceeding due to a lack of proficiency in the English language.
(2) The party who needs an interpreter appears in forma pauperis,
pursuant to Section 68511.3 of the Government Code, or the court
otherwise determines that the parties are financially unable to pay
the cost of an interpreter. In all other cases where an interpreter
is required pursuant to this section, interpreter fees shall be paid
as provided in Section 68092 of the Government Code.
(3) This section shall not prohibit the court doing any of the
following when an interpreter is not present:
(A) Issuing an order when the necessity for the order outweighs
the necessity for an interpreter.
(B) Extending the duration of a previously issued temporary order
if an interpreter is not readily available.
(C) Issuing a permanent order where a party who requires an
interpreter fails to make appropriate arrangements for an interpreter
after receiving proper notice of the hearing, including notice of
the requirement to have an interpreter present, along with
information about obtaining an interpreter.
(b) The Judicial Council shall submit its findings and
recommendations with respect to the pilot project to the Legislature
by January 31, 2001. Measurable objectives of the program may
include increased utilization of the court by parties not fluent in
English, increased efficiency in proceedings, increased compliance
with orders, enhanced coordination between courts and culturally
relevant services in the community, increased client satisfaction,
and increased public satisfaction.
MATTERS CONSIDERED IN GRANTING CUSTODY:
FAMILY.CODE
SECTION 3040-3048
3040. (a) Custody should be granted in the following order of
preference according to the best interest of the child as provided in
Sections 3011 and 3020:
(1) To both parents jointly pursuant to Chapter 4 (commencing with
Section 3080) or to either parent. In making an order granting
custody to either parent, the court shall consider, among other
factors, which parent is more likely to allow the child frequent and
continuing contact with the noncustodial parent, consistent with
Section 3011 and 3020, and shall not prefer a parent as custodian
because of that parent's sex. The court, in its discretion, may
require the parents to submit to the court a plan for the
implementation of the custody order.
(2) If to neither parent, to the person or persons in whose home
the child has been living in a wholesome and stable environment.
(3) To any other person or persons deemed by the court to be
suitable and able to provide adequate and proper care and guidance
for the child.
(b) This section establishes neither a preference nor a
presumption for or against joint legal custody, joint physical
custody, or sole custody, but allows the court and the family the
widest discretion to choose a parenting plan that is in the best
interest of the child.
3041. (a) Before making an order granting custody to a person or
persons other than a parent, over the objection of a parent, the
court shall make a finding that granting custody to a parent would be
detrimental to the child and that granting custody to the nonparent
is required to serve the best interest of the child. Allegations
that parental custody would be detrimental to the child, other than a
statement of that ultimate fact, shall not appear in the pleadings.
The court may, in its discretion, exclude the public from the
hearing on this issue.
(b) Subject to subdivision (d), a finding that parental custody
would be detrimental to the child shall be supported by clear and
convincing evidence.
(c) As used in this section, "detriment to the child" includes the
harm of removal from a stable placement of a child with a person who
has assumed, on a day-to-day basis, the role of his or her parent,
fulfilling both the child's physical needs and the child's
psychological needs for care and affection, and who has assumed that
role for a substantial period of time. A finding of detriment does
not require any finding of unfitness of the parents.
(d) Notwithstanding subdivision (b), if the court finds by a
preponderance of the evidence that the person to whom custody may be
given is a person described in subdivision (c), this finding shall
constitute a finding that the custody is in the best interest of the
child and that parental custody would be detrimental to the child
absent a showing by a preponderance of the evidence to the contrary.
3041.5. (a) In any custody or visitation proceeding brought under
this part, as described in Section 3021, or any guardianship
proceeding brought under the Probate Code, the court may order any
person who is seeking custody of, or visitation with, a child who is
the subject of the proceeding to undergo testing for the illegal use
of controlled substances and the use of alcohol if there is a
judicial determination based upon a preponderance of evidence that
there is the habitual, frequent, or continual illegal use of
controlled substances or the habitual or continual abuse of alcohol
by the parent, legal custodian, person seeking guardianship, or
person seeking visitation in a guardianship. This evidence may
include, but may not be limited to, a conviction within the last five
years for the illegal use or possession of a controlled substance.
The court shall order the least intrusive method of testing for the
illegal use of controlled substances or the habitual or continual
abuse of alcohol by either or both parents, the legal custodian,
person seeking guardianship, or person seeking visitation in a
guardianship. If substance abuse testing is ordered by the court, the
testing shall be performed in conformance with procedures and
standards established by the United States Department of Health and
Human Services for drug testing of federal employees. The parent,
legal custodian, person seeking guardianship, or person seeking
visitation in a guardianship who has undergone drug testing shall
have the right to a hearing, if requested, to challenge a positive
test result. A positive test result, even if challenged and upheld,
shall not, by itself, constitute grounds for an adverse custody or
guardianship decision. Determining the best interests of the child
requires weighing all relevant factors. The court shall also consider
any reports provided to the court pursuant to the Probate Code. The
results of this testing shall be confidential, shall be maintained as
a sealed record in the court file, and may not be released to any
person except the court, the parties, their attorneys, the Judicial
Council (until completion of its authorized study of the testing
process) and any person to whom the court expressly grants access by
written order made with prior notice to all parties. Any person who
has access to the test results may not disseminate copies or disclose
information about the test results to any person other than a person
who is authorized to receive the test results pursuant to this
section. Any breach of the confidentiality of the test results shall
be punishable by civil sanctions not to exceed two thousand five
hundred dollars ($2,500). The results of the testing may not be used
for any purpose, including any criminal, civil, or administrative
proceeding, except to assist the court in determining, for purposes
of the proceeding, the best interest of the child pursuant to Section
3011, and the content of the order or judgment determining custody
or visitation. The court may order either party, or both parties, to
pay the costs of the drug or alcohol testing ordered pursuant to this
section. As used in this section, "controlled substances" has the
same meaning as defined in the California Uniform Controlled
Substances Act, Division 10 (commencing with Section 11000) of the
Health and Safety Code.
(b) This section shall remain in effect only until January 1,
2008, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2008, deletes or extends
that date.
3042. (a) If a child is of sufficient age and capacity to reason so
as to form an intelligent preference as to custody, the court shall
consider and give due weight to the wishes of the child in making an
order granting or modifying custody.
(b) In addition to the requirements of subdivision (b) of Section
765 of the Evidence Code, the court shall control the examination of
the child witness so as to protect the best interests of the child.
The court may preclude the calling of the child as a witness where
the best interests of the child so dictate and may provide
alternative means of obtaining information regarding the child's
preferences.
3043. In determining the person or persons to whom custody should
be granted under paragraph (2) or (3) of subdivision (a) of Section
3040, the court shall consider and give due weight to the nomination
of a guardian of the person of the child by a parent under Article 1
(commencing with Section 1500) of Chapter 1 of Part 2 of Division 4
of the Probate Code.
3044. (a) Upon a finding by the court that a party seeking custody
of a child has perpetrated domestic violence against the other party
seeking custody of the child or against the child or the child's
siblings within the previous five years, there is a rebuttable
presumption that an award of sole or joint physical or legal custody
of a child to a person who has perpetrated domestic violence is
detrimental to the best interest of the child, pursuant to Section
3011. This presumption may only be rebutted by a preponderance of
the evidence.
(b) In determining whether the presumption set forth in
subdivision (a) has been overcome, the court shall consider all of
the following factors:
(1) Whether the perpetrator of domestic violence has demonstrated
that giving sole or joint physical or legal custody of a child to the
perpetrator is in the best interest of the child. In determining
the best interest of the child, the preference for frequent and
continuing contact with both parents, as set forth in subdivision (b)
of Section 3020, or with the noncustodial parent, as set forth in
paragraph (1) of subdivision (a) of Section 3040, may not be used to
rebut the presumption, in whole or in part.
(2) Whether the perpetrator has successfully completed a batterer'
s treatment program that meets the criteria outlined in subdivision
(c) of Section 1203.097 of the Penal Code.
(3) Whether the perpetrator has successfully completed a program
of alcohol or drug abuse counseling if the court determines that
counseling is appropriate.
(4) Whether the perpetrator has successfully completed a parenting
class if the court determines the class to be appropriate.
(5) Whether the perpetrator is on probation or parole, and whether
he or she has complied with the terms and conditions of probation or
parole.
(6) Whether the perpetrator is restrained by a protective order or
restraining order, and whether he or she has complied with its terms
and conditions.
(7) Whether the perpetrator of domestic violence has committed any
further acts of domestic violence.
(c) For purposes of this section, a person has "perpetrated
domestic violence" when he or she is found by the court to have
intentionally or recklessly caused or attempted to cause bodily
injury, or sexual assault, or to have placed a person in reasonable
apprehension of imminent serious bodily injury to that person or to
another, or to have engaged in any behavior involving, but not
limited to, threatening, striking, harassing, destroying personal
property or disturbing the peace of another, for which a court may
issue an ex parte order pursuant to Section 6320 to protect the other
party seeking custody of the child or to protect the child and the
child's siblings.
(d) (1) For purposes of this section, the requirement of a finding
by the court shall be satisfied by, among other things, and not
limited to, evidence that a party seeking custody has been convicted
within the previous five years, after a trial or a plea of guilty or
no contest, of any crime against the other party that comes within
the definition of domestic violence contained in Section 6211 and of
abuse contained in Section 6203, including, but not limited to, a
crime described in subdivision (e) of Section 243 of, or Section 261,
262, 273.5, 422, or 646.9 of, the Penal Code.
(2) The requirement of a finding by the court shall also be
satisfied if any court, whether that court hears or has heard the
child custody proceedings or not, has made a finding pursuant to
subdivision (a) based on conduct occurring within the previous five
years.
(e) When a court makes a finding that a party has perpetrated
domestic violence, the court may not base its findings solely on
conclusions reached by a child custody evaluator or on the
recommendation of the Family Court Services staff, but shall consider
any relevant, admissible evidence submitted by the parties.
(f) In any custody or restraining order proceeding in which a
party has alleged that the other party has perpetrated domestic
violence in accordance with the terms of this section, the court
shall inform the parties of the existence of this section and shall
give them a copy of this section prior to any custody mediation in
the case.
3046. (a) If a party is absent or relocates from the family
residence, the court shall not consider the absence or relocation as
a factor in determining custody or visitation in either of the
following circumstances:
(1) The absence or relocation is of short duration and the court
finds that, during the period of absence or relocation, the party has
demonstrated an interest in maintaining custody or visitation, the
party maintains, or makes reasonable efforts to maintain, regular
contact with the child, and the party's behavior demonstrates no
intent to abandon the child.
(2) The party is absent or relocates because of an act or acts of
actual or threatened domestic or family violence by the other party.
(b) The court may consider attempts by one party to interfere with
the other party's regular contact with the child in determining if
the party has satisfied the requirements of subdivision (a).
(c) This section does not apply to the following:
(1) A party against whom a protective or restraining order has
been issued excluding the party from the dwelling of the other party
or the child, or otherwise enjoining the party from assault or
harrassment against the other party or the child, including, but not
limited to, orders issued under Part 4 (commencing with Section 6300)
of Division 10, orders preventing civil harassment or workplace
violence issued pursuant to Section 527.6 or 527.8 of the Code of
Civil Procedure, and criminal protective orders issued pursuant to
Section 136.2 of the Penal Code.
(2) A party who abandons a child as provided in Section 7822.
3047. A party's absence, relocation, or failure to comply with
custody and visitation orders shall not, by itself, be sufficient to
justify a modification of a custody or visitation order if the reason
for the absence, relocation, or failure to comply is the party's
activation to military service and deployment out of state.
3048. (a) Notwithstanding any other provision of law, in any
proceeding to determine child custody or visitation with a child,
every custody or visitation order shall contain all of the following:
(1) The basis for the court's exercise of jurisdiction.
(2) The manner in which notice and opportunity to be heard were
given.
(3) A clear description of the custody and visitation rights of
each party.
(4) A provision stating that a violation of the order may subject
the party in violation to civil or criminal penalties, or both.
(5) Identification of the country of habitual residence of the
child or children.
(b) (1) In cases in which the court becomes aware of facts which
may indicate that there is a risk of abduction of a child, the court
shall, either on its own motion or at the request of a party,
determine whether measures are needed to prevent the abduction of the
child by one parent. To make that determination, the court shall
consider the risk of abduction of the child, obstacles to location,
recovery, and return if the child is abducted, and potential harm to
the child if he or she is abducted. To determine whether there is a
risk of abduction, the court shall consider the following factors:
(A) Whether a party has previously taken, enticed away, kept,
withheld, or concealed a child in violation of the right of custody
or of visitation of a person.
(B) Whether a party has previously threatened to take, entice
away, keep, withhold, or conceal a child in violation of the right of
custody or of visitation of a person.
(C) Whether a party lacks strong ties to this state.
(D) Whether a party has strong familial, emotional, or cultural
ties to another state or country, including foreign citizenship.
This factor shall be considered only if evidence exists in support of
another factor specified in this section.
(E) Whether a party has no financial reason to stay in this state,
including whether the party is unemployed, is able to work anywhere,
or is financially independent.
(F) Whether a party has engaged in planning activities that would
facilitate the removal of a child from the state, including quitting
a job, selling his or her primary residence, terminating a lease,
closing a bank account, liquidating other assets, hiding or
destroying documents, applying for a passport, applying to obtain a
birth certificate or school or medical records, or purchasing
airplane or other travel tickets, with consideration given to whether
a party is carrying out a safety plan to flee from domestic
violence.
(G) Whether a party has a history of a lack of parental
cooperation or child abuse, or there is substantiated evidence that a
party has perpetrated domestic violence.
(H) Whether a party has a criminal record.
(2) If the court makes a finding that there is a need for
preventative measures after considering the factors listed in
paragraph (1), the court shall consider taking one or more of the
following measures to prevent the abduction of the child:
(A) Ordering supervised visitation.
(B) Requiring a parent to post a bond in an amount sufficient to
serve as a financial deterrent to abduction, the proceeds of which
may be used to offset the cost of recovery of the child in the event
there is an abduction.
(C) Restricting the right of the custodial or noncustodial parent
to remove the child from the county, the state, or the country.
(D) Restricting the right of the custodial parent to relocate with
the child, unless the custodial parent provides advance notice to,
and obtains the written agreement of, the noncustodial parent, or
obtains the approval of the court, before relocating with the child.
(E) Requiring the surrender of passports and other travel
documents.
(F) Prohibiting a parent from applying for a new or replacement
passport for the child.
(G) Requiring a parent to notify a relevant foreign consulate or
embassy of passport restrictions and to provide the court with proof
of that notification.
(H) Requiring a party to register a California order in another
state as a prerequisite to allowing a child to travel to that state
for visits, or to obtain an order from another country containing
terms identical to the custody and visitation order issued in the
United States (recognizing that these orders may be modified or
enforced pursuant to the laws of the other country), as a
prerequisite to allowing a child to travel to that county for visits.
(I) Obtaining assurances that a party will return from foreign
visits by requiring the traveling parent to provide the court or the
other parent or guardian with any of the following:
(i) The travel itinerary of the child.
(ii) Copies of round trip airline tickets.
(iii) A list of addresses and telephone numbers where the child
can be reached at all times.
(iv) An open airline ticket for the left-behind parent in case the
child is not returned.
(J) Including provisions in the custody order to facilitate use of
the Uniform Child Custody Jurisdiction and Enforcement Act (Part 3
(commencing with Section 3400)) and the Hague Convention on the Civil
Aspects of International Child Abduction (implemented pursuant to 42
U.S.C. Sec. 11601 et seq.), such as identifying California as the
home state of the child or otherwise defining the basis for the
California court's exercise of jurisdiction under Part 3 (commencing
with Section 3400), identifying the United States as the country of
habitual residence of the child pursuant to the Hague Convention,
defining custody rights pursuant to the Hague Convention, obtaining
the express agreement of the parents that the United States is the
country of habitual residence of the child, or that California or the
United States is the most appropriate forum for addressing custody
and visitation orders.
(K) Authorizing the assistance of law enforcement.
(3) If the court imposes any or all of the conditions listed in
paragraph (2), those conditions shall be specifically noted on the
minute order of the court proceedings.
(4) If the court determines there is a risk of abduction that is
sufficient to warrant the application of one or more of the
prevention measures authorized by this section, the court shall
inform the parties of the telephone number and address of the Child
Abduction Unit in the office of the district attorney in the county
where the custody or visitation order is being entered.
(c) The Judicial Council shall make the changes to its child
custody order forms that are necessary for the implementation of
subdivision (b). This subdivision shall become operative on July 1,
2003.
(d) Nothing in this section affects the applicability of Section
278.7 of the Penal Code.
TEMPORARY CUSTODY DURING PROCEEDINGS:
FAMILY.CODE
SECTION 3040-3048
3040. (a) Custody should be granted in the following order of
preference according to the best interest of the child as provided in
Sections 3011 and 3020:
(1) To both parents jointly pursuant to Chapter 4 (commencing with
Section 3080) or to either parent. In making an order granting
custody to either parent, the court shall consider, among other
factors, which parent is more likely to allow the child frequent and
continuing contact with the noncustodial parent, consistent with
Section 3011 and 3020, and shall not prefer a parent as custodian
because of that parent's sex. The court, in its discretion, may
require the parents to submit to the court a plan for the
implementation of the custody order.
(2) If to neither parent, to the person or persons in whose home
the child has been living in a wholesome and stable environment.
(3) To any other person or persons deemed by the court to be
suitable and able to provide adequate and proper care and guidance
for the child.
(b) This section establishes neither a preference nor a
presumption for or against joint legal custody, joint physical
custody, or sole custody, but allows the court and the family the
widest discretion to choose a parenting plan that is in the best
interest of the child.
3041. (a) Before making an order granting custody to a person or
persons other than a parent, over the objection of a parent, the
court shall make a finding that granting custody to a parent would be
detrimental to the child and that granting custody to the nonparent
is required to serve the best interest of the child. Allegations
that parental custody would be detrimental to the child, other than a
statement of that ultimate fact, shall not appear in the pleadings.
The court may, in its discretion, exclude the public from the
hearing on this issue.
(b) Subject to subdivision (d), a finding that parental custody
would be detrimental to the child shall be supported by clear and
convincing evidence.
(c) As used in this section, "detriment to the child" includes the
harm of removal from a stable placement of a child with a person who
has assumed, on a day-to-day basis, the role of his or her parent,
fulfilling both the child's physical needs and the child's
psychological needs for care and affection, and who has assumed that
role for a substantial period of time. A finding of detriment does
not require any finding of unfitness of the parents.
(d) Notwithstanding subdivision (b), if the court finds by a
preponderance of the evidence that the person to whom custody may be
given is a person described in subdivision (c), this finding shall
constitute a finding that the custody is in the best interest of the
child and that parental custody would be detrimental to the child
absent a showing by a preponderance of the evidence to the contrary.
3041.5. (a) In any custody or visitation proceeding brought under
this part, as described in Section 3021, or any guardianship
proceeding brought under the Probate Code, the court may order any
person who is seeking custody of, or visitation with, a child who is
the subject of the proceeding to undergo testing for the illegal use
of controlled substances and the use of alcohol if there is a
judicial determination based upon a preponderance of evidence that
there is the habitual, frequent, or continual illegal use of
controlled substances or the habitual or continual abuse of alcohol
by the parent, legal custodian, person seeking guardianship, or
person seeking visitation in a guardianship. This evidence may
include, but may not be limited to, a conviction within the last five
years for the illegal use or possession of a controlled substance.
The court shall order the least intrusive method of testing for the
illegal use of controlled substances or the habitual or continual
abuse of alcohol by either or both parents, the legal custodian,
person seeking guardianship, or person seeking visitation in a
guardianship. If substance abuse testing is ordered by the court, the
testing shall be performed in conformance with procedures and
standards established by the United States Department of Health and
Human Services for drug testing of federal employees. The parent,
legal custodian, person seeking guardianship, or person seeking
visitation in a guardianship who has undergone drug testing shall
have the right to a hearing, if requested, to challenge a positive
test result. A positive test result, even if challenged and upheld,
shall not, by itself, constitute grounds for an adverse custody or
guardianship decision. Determining the best interests of the child
requires weighing all relevant factors. The court shall also consider
any reports provided to the court pursuant to the Probate Code. The
results of this testing shall be confidential, shall be maintained as
a sealed record in the court file, and may not be released to any
person except the court, the parties, their attorneys, the Judicial
Council (until completion of its authorized study of the testing
process) and any person to whom the court expressly grants access by
written order made with prior notice to all parties. Any person who
has access to the test results may not disseminate copies or disclose
information about the test results to any person other than a person
who is authorized to receive the test results pursuant to this
section. Any breach of the confidentiality of the test results shall
be punishable by civil sanctions not to exceed two thousand five
hundred dollars ($2,500). The results of the testing may not be used
for any purpose, including any criminal, civil, or administrative
proceeding, except to assist the court in determining, for purposes
of the proceeding, the best interest of the child pursuant to Section
3011, and the content of the order or judgment determining custody
or visitation. The court may order either party, or both parties, to
pay the costs of the drug or alcohol testing ordered pursuant to this
section. As used in this section, "controlled substances" has the
same meaning as defined in the California Uniform Controlled
Substances Act, Division 10 (commencing with Section 11000) of the
Health and Safety Code.
(b) This section shall remain in effect only until January 1,
2008, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2008, deletes or extends
that date.
3042. (a) If a child is of sufficient age and capacity to reason so
as to form an intelligent preference as to custody, the court shall
consider and give due weight to the wishes of the child in making an
order granting or modifying custody.
(b) In addition to the requirements of subdivision (b) of Section
765 of the Evidence Code, the court shall control the examination of
the child witness so as to protect the best interests of the child.
The court may preclude the calling of the child as a witness where
the best interests of the child so dictate and may provide
alternative means of obtaining information regarding the child's
preferences.
3043. In determining the person or persons to whom custody should
be granted under paragraph (2) or (3) of subdivision (a) of Section
3040, the court shall consider and give due weight to the nomination
of a guardian of the person of the child by a parent under Article 1
(commencing with Section 1500) of Chapter 1 of Part 2 of Division 4
of the Probate Code.
3044. (a) Upon a finding by the court that a party seeking custody
of a child has perpetrated domestic violence against the other party
seeking custody of the child or against the child or the child's
siblings within the previous five years, there is a rebuttable
presumption that an award of sole or joint physical or legal custody
of a child to a person who has perpetrated domestic violence is
detrimental to the best interest of the child, pursuant to Section
3011. This presumption may only be rebutted by a preponderance of
the evidence.
(b) In determining whether the presumption set forth in
subdivision (a) has been overcome, the court shall consider all of
the following factors:
(1) Whether the perpetrator of domestic violence has demonstrated
that giving sole or joint physical or legal custody of a child to the
perpetrator is in the best interest of the child. In determining
the best interest of the child, the preference for frequent and
continuing contact with both parents, as set forth in subdivision (b)
of Section 3020, or with the noncustodial parent, as set forth in
paragraph (1) of subdivision (a) of Section 3040, may not be used to
rebut the presumption, in whole or in part.
(2) Whether the perpetrator has successfully completed a batterer'
s treatment program that meets the criteria outlined in subdivision
(c) of Section 1203.097 of the Penal Code.
(3) Whether the perpetrator has successfully completed a program
of alcohol or drug abuse counseling if the court determines that
counseling is appropriate.
(4) Whether the perpetrator has successfully completed a parenting
class if the court determines the class to be appropriate.
(5) Whether the perpetrator is on probation or parole, and whether
he or she has complied with the terms and conditions of probation or
parole.
(6) Whether the perpetrator is restrained by a protective order or
restraining order, and whether he or she has complied with its terms
and conditions.
(7) Whether the perpetrator of domestic violence has committed any
further acts of domestic violence.
(c) For purposes of this section, a person has "perpetrated
domestic violence" when he or she is found by the court to have
intentionally or recklessly caused or attempted to cause bodily
injury, or sexual assault, or to have placed a person in reasonable
apprehension of imminent serious bodily injury to that person or to
another, or to have engaged in any behavior involving, but not
limited to, threatening, striking, harassing, destroying personal
property or disturbing the peace of another, for which a court may
issue an ex parte order pursuant to Section 6320 to protect the other
party seeking custody of the child or to protect the child and the
child's siblings.
(d) (1) For purposes of this section, the requirement of a finding
by the court shall be satisfied by, among other things, and not
limited to, evidence that a party seeking custody has been convicted
within the previous five years, after a trial or a plea of guilty or
no contest, of any crime against the other party that comes within
the definition of domestic violence contained in Section 6211 and of
abuse contained in Section 6203, including, but not limited to, a
crime described in subdivision (e) of Section 243 of, or Section 261,
262, 273.5, 422, or 646.9 of, the Penal Code.
(2) The requirement of a finding by the court shall also be
satisfied if any court, whether that court hears or has heard the
child custody proceedings or not, has made a finding pursuant to
subdivision (a) based on conduct occurring within the previous five
years.
(e) When a court makes a finding that a party has perpetrated
domestic violence, the court may not base its findings solely on
conclusions reached by a child custody evaluator or on the
recommendation of the Family Court Services staff, but shall consider
any relevant, admissible evidence submitted by the parties.
(f) In any custody or restraining order proceeding in which a
party has alleged that the other party has perpetrated domestic
violence in accordance with the terms of this section, the court
shall inform the parties of the existence of this section and shall
give them a copy of this section prior to any custody mediation in
the case.
3046. (a) If a party is absent or relocates from the family
residence, the court shall not consider the absence or relocation as
a factor in determining custody or visitation in either of the
following circumstances:
(1) The absence or relocation is of short duration and the court
finds that, during the period of absence or relocation, the party has
demonstrated an interest in maintaining custody or visitation, the
party maintains, or makes reasonable efforts to maintain, regular
contact with the child, and the party's behavior demonstrates no
intent to abandon the child.
(2) The party is absent or relocates because of an act or acts of
actual or threatened domestic or family violence by the other party.
(b) The court may consider attempts by one party to interfere with
the other party's regular contact with the child in determining if
the party has satisfied the requirements of subdivision (a).
(c) This section does not apply to the following:
(1) A party against whom a protective or restraining order has
been issued excluding the party from the dwelling of the other party
or the child, or otherwise enjoining the party from assault or
harrassment against the other party or the child, including, but not
limited to, orders issued under Part 4 (commencing with Section 6300)
of Division 10, orders preventing civil harassment or workplace
violence issued pursuant to Section 527.6 or 527.8 of the Code of
Civil Procedure, and criminal protective orders issued pursuant to
Section 136.2 of the Penal Code.
(2) A party who abandons a child as provided in Section 7822.
3047. A party's absence, relocation, or failure to comply with
custody and visitation orders shall not, by itself, be sufficient to
justify a modification of a custody or visitation order if the reason
for the absence, relocation, or failure to comply is the party's
activation to military service and deployment out of state.
3048. (a) Notwithstanding any other provision of law, in any
proceeding to determine child custody or visitation with a child,
every custody or visitation order shall contain all of the following:
(1) The basis for the court's exercise of jurisdiction.
(2) The manner in which notice and opportunity to be heard were
given.
(3) A clear description of the custody and visitation rights of
each party.
(4) A provision stating that a violation of the order may subject
the party in violation to civil or criminal penalties, or both.
(5) Identification of the country of habitual residence of the
child or children.
(b) (1) In cases in which the court becomes aware of facts which
may indicate that there is a risk of abduction of a child, the court
shall, either on its own motion or at the request of a party,
determine whether measures are needed to prevent the abduction of the
child by one parent. To make that determination, the court shall
consider the risk of abduction of the child, obstacles to location,
recovery, and return if the child is abducted, and potential harm to
the child if he or she is abducted. To determine whether there is a
risk of abduction, the court shall consider the following factors:
(A) Whether a party has previously taken, enticed away, kept,
withheld, or concealed a child in violation of the right of custody
or of visitation of a person.
(B) Whether a party has previously threatened to take, entice
away, keep, withhold, or conceal a child in violation of the right of
custody or of visitation of a person.
(C) Whether a party lacks strong ties to this state.
(D) Whether a party has strong familial, emotional, or cultural
ties to another state or country, including foreign citizenship.
This factor shall be considered only if evidence exists in support of
another factor specified in this section.
(E) Whether a party has no financial reason to stay in this state,
including whether the party is unemployed, is able to work anywhere,
or is financially independent.
(F) Whether a party has engaged in planning activities that would
facilitate the removal of a child from the state, including quitting
a job, selling his or her primary residence, terminating a lease,
closing a bank account, liquidating other assets, hiding or
destroying documents, applying for a passport, applying to obtain a
birth certificate or school or medical records, or purchasing
airplane or other travel tickets, with consideration given to whether
a party is carrying out a safety plan to flee from domestic
violence.
(G) Whether a party has a history of a lack of parental
cooperation or child abuse, or there is substantiated evidence that a
party has perpetrated domestic violence.
(H) Whether a party has a criminal record.
(2) If the court makes a finding that there is a need for
preventative measures after considering the factors listed in
paragraph (1), the court shall consider taking one or more of the
following measures to prevent the abduction of the child:
(A) Ordering supervised visitation.
(B) Requiring a parent to post a bond in an amount sufficient to
serve as a financial deterrent to abduction, the proceeds of which
may be used to offset the cost of recovery of the child in the event
there is an abduction.
(C) Restricting the right of the custodial or noncustodial parent
to remove the child from the county, the state, or the country.
(D) Restricting the right of the custodial parent to relocate with
the child, unless the custodial parent provides advance notice to,
and obtains the written agreement of, the noncustodial parent, or
obtains the approval of the court, before relocating with the child.
(E) Requiring the surrender of passports and other travel
documents.
(F) Prohibiting a parent from applying for a new or replacement
passport for the child.
(G) Requiring a parent to notify a relevant foreign consulate or
embassy of passport restrictions and to provide the court with proof
of that notification.
(H) Requiring a party to register a California order in another
state as a prerequisite to allowing a child to travel to that state
for visits, or to obtain an order from another country containing
terms identical to the custody and visitation order issued in the
United States (recognizing that these orders may be modified or
enforced pursuant to the laws of the other country), as a
prerequisite to allowing a child to travel to that county for visits.
(I) Obtaining assurances that a party will return from foreign
visits by requiring the traveling parent to provide the court or the
other parent or guardian with any of the following:
(i) The travel itinerary of the child.
(ii) Copies of round trip airline tickets.
(iii) A list of addresses and telephone numbers where the child
can be reached at all times.
(iv) An open airline ticket for the left-behind parent in case the
child is not returned.
(J) Including provisions in the custody order to facilitate use of
the Uniform Child Custody Jurisdiction and Enforcement Act (Part 3
(commencing with Section 3400)) and the Hague Convention on the Civil
Aspects of International Child Abduction (implemented pursuant to 42
U.S.C. Sec. 11601 et seq.), such as identifying California as the
home state of the child or otherwise defining the basis for the
California court's exercise of jurisdiction under Part 3 (commencing
with Section 3400), identifying the United States as the country of
habitual residence of the child pursuant to the Hague Convention,
defining custody rights pursuant to the Hague Convention, obtaining
the express agreement of the parents that the United States is the
country of habitual residence of the child, or that California or the
United States is the most appropriate forum for addressing custody
and visitation orders.
(K) Authorizing the assistance of law enforcement.
(3) If the court imposes any or all of the conditions listed in
paragraph (2), those conditions shall be specifically noted on the
minute order of the court proceedings.
(4) If the court determines there is a risk of abduction that is
sufficient to warrant the application of one or more of the
prevention measures authorized by this section, the court shall
inform the parties of the telephone number and address of the Child
Abduction Unit in the office of the district attorney in the county
where the custody or visitation order is being entered.
(c) The Judicial Council shall make the changes to its child
custody order forms that are necessary for the implementation of
subdivision (b). This subdivision shall become operative on July 1,
2003.
(d) Nothing in this section affects the applicability of Section
278.7 of the Penal Code.
JOINT CUSTODY:
FAMILY.CODE
SECTION 3080-3089
3080. There is a presumption, affecting the burden of proof, that
joint custody is in the best interest of a minor child, subject to
Section 3011, where the parents have agreed to joint custody or so
agree in open court at a hearing for the purpose of determining the
custody of the minor child.
3081. On application of either parent, joint custody may be ordered
in the discretion of the court in cases other than those described
in Section 3080, subject to Section 3011. For the purpose of
assisting the court in making a determination whether joint custody
is appropriate under this section, the court may direct that an
investigation be conducted pursuant to Chapter 6 (commencing with
Section 3110).
3082. When a request for joint custody is granted or denied, the
court, upon the request of any party, shall state in its decision the
reasons for granting or denying the request. A statement that joint
physical custody is, or is not, in the best interest of the child is
not sufficient to satisfy the requirements of this section.
3083. In making an order of joint legal custody, the court shall
specify the circumstances under which the consent of both parents is
required to be obtained in order to exercise legal control of the
child and the consequences of the failure to obtain mutual consent.
In all other circumstances, either parent acting alone may exercise
legal control of the child. An order of joint legal custody shall
not be construed to permit an action that is inconsistent with the
physical custody order unless the action is expressly authorized by
the court.
3084. In making an order of joint physical custody, the court shall
specify the rights of each parent to physical control of the child
in sufficient detail to enable a parent deprived of that control to
implement laws for relief of child snatching and kidnapping.
3085. In making an order for custody with respect to both parents,
the court may grant joint legal custody without granting joint
physical custody.
3086. In making an order of joint physical custody or joint legal
custody, the court may specify one parent as the primary caretaker of
the child and one home as the primary home of the child, for the
purposes of determining eligibility for public assistance.
3087. An order for joint custody may be modified or terminated upon
the petition of one or both parents or on the court's own motion if
it is shown that the best interest of the child requires modification
or termination of the order. If either parent opposes the
modification or termination order, the court shall state in its
decision the reasons for modification or termination of the joint
custody order.
3088. An order for the custody of a minor child entered by a court
in this state or any other state may, subject to the jurisdictional
requirements in Sections 3403 and 3414, be modified at any time to an
order for joint custody in accordance with this chapter.
3089. In counties having a conciliation court, the court or the
parties may, at any time, pursuant to local rules of court, consult
with the conciliation court for the purpose of assisting the parties
to formulate a plan for implementation of the custody order or to
resolve a controversy which has arisen in the implementation of a
plan for custody.
VISITATION: FAMILY.CODE
SECTION 3100-3105
3100. (a) In making an order pursuant to Chapter 4 (commencing with
Section 3080), the court shall grant reasonable visitation rights to
a parent unless it is shown that the visitation would be detrimental
to the best interest of the child. In the discretion of the court,
reasonable visitation rights may be granted to any other person
having an interest in the welfare of the child.
(b) If a protective order, as defined in Section 6218, has been
directed to a parent, the court shall consider whether the best
interest of the child requires that any visitation by that parent
shall be limited to situations in which a third person, specified by
the court, is present, or whether visitation shall be suspended or
denied. The court shall include in its deliberations a consideration
of the nature of the acts from which the parent was enjoined and the
period of time that has elapsed since that order. A parent may submit
to the court the name of a person that the parent deems suitable to
be present during visitation.
(c) If visitation is ordered in a case in which domestic violence
is alleged and an emergency protective order, protective order, or
other restraining order has been issued, the visitation order shall
specify the time, day, place, and manner of transfer of the child, so
as to limit the child's exposure to potential domestic conflict or
violence and to ensure the safety of all family members. If a
criminal protective order has been issued pursuant to Section 136.2
of the Penal Code, the visitation order shall make reference to, and
acknowledge the precedence of enforcement of, any appropriate
criminal protective order.
(d) If the court finds a party is staying in a place designated
as a shelter for victims of domestic violence or other confidential
location, the court's order for time, day, place, and manner of
transfer of the child for visitation shall be designed to prevent
disclosure of the location of the shelter or other confidential
location.
3101. (a) Notwithstanding any other provision of law, the court may
grant reasonable visitation to a stepparent, if visitation by the
stepparent is determined to be in the best interest of the minor
child.
(b) If a protective order, as defined in Section 6218, has been
directed to a stepparent to whom visitation may be granted pursuant
to this section, the court shall consider whether the best interest
of the child requires that any visitation by the stepparent be
denied.
(c) Visitation rights may not be ordered under this section that
would conflict with a right of custody or visitation of a birth
parent who is not a party to the proceeding.
(d) As used in this section:
(1) "Birth parent" means "birth parent" as defined in Section
8512.
(2) "Stepparent" means a person who is a party to the marriage
that is the subject of the proceeding, with respect to a minor child
of the other party to the marriage.
3102. (a) If either parent of an unemancipated minor child is
deceased, the children, siblings, parents, and grandparents of the
deceased parent may be granted reasonable visitation with the child
during the child's minority upon a finding that the visitation would
be in the best interest of the minor child.
(b) In granting visitation pursuant to this section to a person
other than a grandparent of the child, the court shall consider the
amount of personal contact between the person and the child before
the application for the visitation order.
(c) This section does not apply if the child has been adopted by a
person other than a stepparent or grandparent of the child. Any
visitation rights granted pursuant to this section before the
adoption of the child automatically terminate if the child is adopted
by a person other than a stepparent or grandparent of the child.
3103. (a) Notwithstanding any other provision of law, in a
proceeding described in Section 3021, the court may grant reasonable
visitation to a grandparent of a minor child of a party to the
proceeding if the court determines that visitation by the grandparent
is in the best interest of the child.
(b) If a protective order as defined in Section 6218 has been
directed to the grandparent during the pendency of the proceeding,
the court shall consider whether the best interest of the child
requires that visitation by the grandparent be denied.
(c) The petitioner shall give notice of the petition to each of
the parents of the child, any stepparent, and any person who has
physical custody of the child, by certified mail, return receipt
requested, postage prepaid, to the person's last known address, or to
the attorneys of record of the parties to the proceeding.
(d) There is a rebuttable presumption affecting the burden of
proof that the visitation of a grandparent is not in the best
interest of a minor child if the child's parents agree that the
grandparent should not be granted visitation rights.
(e) Visitation rights may not be ordered under this section if
that would conflict with a right of custody or visitation of a birth
parent who is not a party to the proceeding.
(f) Visitation ordered pursuant to this section shall not create a
basis for or against a change of residence of the child, but shall
be one of the factors for the court to consider in ordering a change
of residence.
(g) When a court orders grandparental visitation pursuant to this
section, the court in its discretion may, based upon the relevant
circumstances of the case:
(1) Allocate the percentage of grandparental visitation between
the parents for purposes of the calculation of child support pursuant
to the statewide uniform guideline (Article 2 (commencing with
Section 4050) of Chapter 2 of Part 2 of Division 9).
(2) Notwithstanding Sections 3930 and 3951, order a parent or
grandparent to pay to the other, an amount for the support of the
child or grandchild. For purposes of this paragraph, "support" means
costs related to visitation such as any of the following:
(A) Transportation.
(B) Provision of basic expenses for the child or grandchild, such
as medical expenses, day care costs, and other necessities.
(h) As used in this section, "birth parent" means "birth parent"
as defined in Section 8512.
3104. (a) On petition to the court by a grandparent of a minor
child, the court may grant reasonable visitation rights to the
grandparent if the court does both of the following:
(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.
(2) Balances the interest of the child in having visitation with
the grandparent against the right of the parents to exercise their
parental authority.
(b) A petition for visitation under this section may not be filed
while the natural or adoptive parents are married, unless one or more
of the following circumstances exist:
(1) The parents are currently living separately and apart on a
permanent or indefinite basis.
(2) One of the parents has been absent for more than one month
without the other spouse knowing the whereabouts of the absent
spouse.
(3) One of the parents joins in the petition with the
grandparents.
(4) The child is not residing with either parent.
At any time that a change of circumstances occurs such that none
of these circumstances exist, the parent or parents may move the
court to terminate grandparental visitation and the court shall grant
the termination.
(c) The petitioner shall give notice of the petition to each of
the parents of the child, any stepparent, and any person who has
physical custody of the child, by personal service pursuant to
Section 415.10 of the Code of Civil Procedure.
(d) If a protective order as defined in Section 6218 has been
directed to the grandparent during the pendency of the proceeding,
the court shall consider whether the best interest of the child
requires that any visitation by that grandparent should be denied.
(e) 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.
(f) There is a rebuttable presumption affecting the burden of
proof that the visitation of a grandparent is not in the best
interest of a minor child if the parent who has been awarded sole
legal and physical custody of the child in another proceeding or with
whom the child resides if there is currently no operative custody
order objects to visitation by the grandparent.
(g) Visitation rights may not be ordered under this section if
that would conflict with a right of custody or visitation of a birth
parent who is not a party to the proceeding.
(h) Visitation ordered pursuant to this section shall not create a
basis for or against a change of residence of the child, but shall
be one of the factors for the court to consider in ordering a change
of residence.
(i) When a court orders grandparental visitation pursuant to this
section, the court in its discretion may, based upon the relevant
circumstances of the case:
(1) Allocate the percentage of grandparental visitation between
the parents for purposes of the calculation of child support pursuant
to the statewide uniform guideline (Article 2 (commencing with
Section 4050) of Chapter 2 of Part 2 of Division 9).
(2) Notwithstanding Sections 3930 and 3951, order a parent or
grandparent to pay to the other, an amount for the support of the
child or grandchild. For purposes of this paragraph, "support" means
costs related to visitation such as any of the following:
(A) Transportation.
(B) Provision of basic expenses for the child or grandchild, such
as medical expenses, day care costs, and other necessities.
(j) As used in this section, "birth parent" means "birth parent"
as defined in Section 8512.
3105. (a) The Legislature finds and declares that a parent's
fundamental right to provide for the care, custody, companionship,
and management of his or her children, while compelling, is not
absolute. Children have a fundamental right to maintain healthy,
stable relationships with a person who has served in a significant,
judicially approved parental role.
(b) The court may grant reasonable visitation rights to a person
who previously served as the legal guardian of a child, if visitation
is determined to be in the best interest of the minor child.
(c) In the absence of a court order granting or denying visitation
between a former legal guardian and his or her former minor ward,
and if a dependency proceeding is not pending, a former legal
guardian may maintain an independent action for visitation with his
or her former minor ward. If the child does not have at least one
living parent, visitation shall not be determined in a proceeding
under the Family Code, but shall instead be determined in a
guardianship proceeding which may be initiated for that purpose.
CUSTODY INVESTIGATION AND REPORTS: FAMILY.CODE
SECTION 3110-3118
3110. As used in this chapter, "court-appointed investigator" means
a probation officer, domestic relations investigator, or
court-appointed evaluator directed by the court to conduct an
investigation pursuant to this chapter.
3110.5. (a) No person may be a court-connected or private child
custody evaluator under this chapter unless the person has completed
the domestic violence and child abuse training program described in
Section 1816 and has complied with Rules 5.220 and 5.230 of the
California Rules of Court.
(b) (1) On or before January 1, 2002, the Judicial Council shall
formulate a statewide rule of court that establishes education,
experience, and training requirements for all child custody
evaluators appointed pursuant to this chapter, Section 730 of the
Evidence Code, or Chapter 15 (commencing with Section 2032.010) of
Title 4 of Part 4 of the Code of Civil Procedure.
(A) The rule shall require a child custody evaluator to declare
under penalty of perjury that he or she meets all of the education,
experience, and training requirements specified in the rule and, if
applicable, possesses a license in good standing. The Judicial
Council shall establish forms to implement this section. The rule
shall permit court-connected evaluators to conduct evaluations if
they meet all of the qualifications established by the Judicial
Council. The education, experience, and training requirements to be
specified for court-connected evaluators shall include, but not be
limited to, knowledge of the psychological and developmental needs of
children and parent-child relationships.
(B) The rule shall require all evaluators to utilize comparable
interview, assessment, and testing procedures for all parties that
are consistent with generally accepted clinical, forensic,
scientific, diagnostic, or medical standards. The rule shall also
require evaluators to inform each adult party of the purpose, nature,
and method of the evaluation.
(C) The rule may allow courts to permit the parties to stipulate
to an evaluator of their choosing with the approval of the court
under the circumstances set forth in subdivision (d). The rule may
require courts to provide general information about how parties can
contact qualified child custody evaluators in their county.
(2) On or before January 1, 2004, the Judicial Council shall
include in the statewide rule of court created pursuant to this
section a requirement that all court-connected and private child
custody evaluators receive training in the nature of child sexual
abuse. The Judicial Council shall develop standards for this
training that shall include, but not be limited to, the following:
(A) Children's patterns of hiding and disclosing sexual abuse
occurring in a family setting.
(B) The effects of sexual abuse on children.
(C) The nature and extent of child sexual abuse.
(D) The social and family dynamics of child sexual abuse.
(E) Techniques for identifying and assisting families affected by
child sexual abuse.
(F) Legal rights, protections, and remedies available to victims
of child sexual abuse.
(c) In addition to the education, experience, and training
requirements established by the Judicial Council pursuant to
subdivision (b), on or after January 1, 2005, no person may be a
child custody evaluator under this chapter, Section 730 of the
Evidence Code, or Chapter 15 (commencing with Section 2032.010) of
Title 4 of Part 4 of the Code of Civil Procedure unless the person
meets one of the following criteria:
(1) He or she is licensed as a physician under Chapter 5
(commencing with Section 2000) of Division 2 of the Business and
Professions Code and either is a board certified psychiatrist or has
completed a residency in psychiatry.
(2) He or she is licensed as a psychologist under Chapter 6.6
(commencing with Section 2900) of Division 2 of the Business and
Professions Code.
(3) He or she is licensed as a marriage and family therapist under
Chapter 13 (commencing with Section 4980) of Division 2 of the
Business and Professions Code.
(4) He or she is licensed as a clinical social worker under
Article 4 (commencing with Section 4996) of Chapter 14 of Division 2
of the Business and Professions Code.
(5) He or she is a court-connected evaluator who has been
certified by the court as meeting all of the qualifications for
court-connected evaluators as specified by the Judicial Council
pursuant to subdivision (b).
(d) Subdivision (c) does not apply in any case where the court
determines that there are no evaluators who meet the criteria of
subdivision (c) who are willing and available, within a reasonable
period of time, to perform child custody evaluations. In those
cases, the parties may stipulate to an individual who does not meet
the criteria of subdivision (c), subject to approval by the court.
(e) A child custody evaluator who is licensed by the Medical Board
of California, the Board of Psychology, or the Board of Behavioral
Sciences shall be subject to disciplinary action by that board for
unprofessional conduct, as defined in the licensing law applicable to
that licensee.
(f) On or after January 1, 2005, a court-connected or private
child custody evaluator may not evaluate, investigate, or mediate an
issue of child custody in a proceeding pursuant to this division
unless that person has completed child sexual abuse training as
required by this section.
3111. (a) In any contested proceeding involving child custody or
visitation rights, the court may appoint a child custody evaluator to
conduct a child custody evaluation in cases where the court
determines it is in the best interests of the child. The child
custody evaluation shall be conducted in accordance with the
standards adopted by the Judicial Council pursuant to Section 3117,
and all other standards adopted by the Judicial Council regarding
child custody evaluations. If directed by the court, the
court-appointed child custody evaluator shall file a written
confidential report on his or her evaluation. At least 10 days before
any hearing regarding custody of the child, the report shall be
filed with the clerk of the court in which the custody hearing will
be conducted and served on the parties or their attorneys, and any
other counsel appointed for the child pursuant to Section 3150. The
report may be considered by the court.
(b) The report shall not be made available other than as provided
in subdivision (a), or as described in Section 204 of the Welfare and
Institutions Code or Section 1514.5 of the Probate Code. Any
information obtained from access to a juvenile court case file, as
defined in subdivision (e) of Section 827 of the Welfare and
Institutions Code, is confidential and shall only be disseminated as
provided by paragraph (4) of subdivision (a) of Section 827 of the
Welfare and Institutions Code.
(c) The report may be received in evidence on stipulation of all
interested parties and is competent evidence as to all matters
contained in the report.
3112. (a) Where a court-appointed investigator is directed by the
court to conduct a custody investigation or evaluation pursuant to
this chapter or to undertake visitation work, including necessary
evaluation, supervision, and reporting, the court shall inquire into
the financial condition of the parent, guardian, or other person
charged with the support of the minor. If the court finds the
parent, guardian, or other person able to pay all or part of the
expense of the investigation, report, and recommendation, the court
may make an order requiring the parent, guardian, or other person to
repay the court the amount the court determines proper.
(b) The repayment shall be made to the court. The court shall
keep suitable accounts of the expenses and repayments and shall
deposit the collections as directed by the Judicial Council.
3113. Where there has been a history of domestic violence between
the parties, or where a protective order as defined in Section 6218
is in effect, at the request of the party alleging domestic violence
in a written declaration under penalty of perjury or at the request
of a party who is protected by the order, the parties shall meet with
the court-appointed investigator separately and at separate times.
3114. Nothing in this chapter prohibits a court-appointed
investigator from recommending to the court that counsel be appointed
pursuant to Chapter 10 (commencing with Section 3150) to represent
the minor child. In making that recommendation, the court-appointed
investigator shall inform the court of the reasons why it would be in
the best interest of the child to have counsel appointed.
3115. No statement, whether written or oral, or conduct shall be
held to constitute a waiver by a party of the right to cross-examine
the court-appointed investigator, unless the statement is made, or
the conduct occurs, after the report has been received by a party or
his or her attorney.
3116. Nothing in this chapter limits the duty of a court-appointed
investigator to assist the appointing court in the transaction of the
business of the court.
3117. The Judicial Council shall, by January 1, 1999, do both of
the following:
(a) Adopt standards for full and partial court-connected
evaluations, investigations, and assessments related to child
custody.
(b) Adopt procedural guidelines for the expeditious and
cost-effective cross-examination of court-appointed investigators,
including, but not limited to, the use of electronic technology
whereby the court-appointed investigator may not need to be present
in the courtroom. These guidelines shall in no way limit the
requirement that the court-appointed investigator be available for
the purposes of cross-examination. These guidelines shall also
provide for written notification to the parties of the right to
cross-examine these investigators after the parties have had a
reasonable time to review the investigator's report.
3118. (a) In any contested proceeding involving child custody or
visitation rights, where the court has appointed a child custody
evaluator or has referred a case for a full or partial
court-connected evaluation, investigation, or assessment, and the
court determines that there is a serious allegation of child sexual
abuse, the court shall require an evaluation, investigation, or
assessment pursuant to this section. When the court has determined
that there is a serious allegation of child sexual abuse, any child
custody evaluation, investigation, or assessment conducted subsequent
to that determination shall be considered by the court only if the
evaluation, investigation, or assessment is conducted in accordance
with the minimum requirements set forth in this section in
determining custody or visitation rights, except as specified in
paragraph (1). For purposes of this section, a serious allegation of
child sexual abuse means an allegation of child sexual abuse, as
defined in Section 11165.1 of the Penal Code, that is based in whole
or in part on statements made by the child to law enforcement, a
child welfare services agency investigator, any person required by
statute to report suspected child abuse, or any other court-appointed
personnel, or that is supported by substantial independent
corroboration as provided for in subdivision (b) of Section 3011.
When an allegation of child abuse arises in any other circumstances
in any proceeding involving child custody or visitation rights, the
court may require an evaluator or investigator to conduct an
evaluation, investigation, or assessment pursuant to this section.
The order appointing a child custody evaluator or investigator
pursuant to this section shall provide that the evaluator or
investigator have access to all juvenile court records pertaining to
the child who is the subject of the evaluation, investigation, or
assessment. The order shall also provide that any juvenile court
records or information gained from those records remain confidential
and shall only be released as specified in Section 3111.
(1) This section does not apply to any emergency court-ordered
partial investigation that is conducted for the purpose of assisting
the court in determining what immediate temporary orders may be
necessary to protect and meet the immediate needs of a child. This
section does apply when the emergency is resolved and the court is
considering permanent child custody or visitation orders.
(2) This section does not prohibit a court from considering
evidence relevant to determining the safety and protection needs of
the child.
(3) Any evaluation, investigation, or assessment conducted
pursuant to this section shall be conducted by an evaluator or
investigator who meets the qualifications set forth in Section
3110.5.
(b) The evaluator or investigator shall, at a minimum, do all of
the following:
(1) Consult with the agency providing child welfare services and
law enforcement regarding the allegations of child sexual abuse, and
obtain recommendations from these professionals regarding the child's
safety and the child's need for protection.
(2) Review and summarize the child welfare services agency file.
No document contained in the child welfare services agency file may
be photocopied, but a summary of the information in the file,
including statements made by the children and the parents, and the
recommendations made or anticipated to be made by the child welfare
services agency to the juvenile court, may be recorded by the
evaluator or investigator, except for the identity of the reporting
party. The evaluator's or investigator's notes summarizing the child
welfare services agency information shall be stored in a file
separate from the evaluator's or investigator's file and may only be
released to either party under order of the court.
(3) Obtain from a law enforcement investigator all available
information obtained from criminal background checks of the parents
and any suspected perpetrator that is not a parent, including
information regarding child abuse, domestic violence, or substance
abuse.
(4) Review the results of a multidisciplinary child interview team
(hereafter MDIT) interview if available, or if not, or if the
evaluator or investigator believes the MDIT interview is inadequate
for purposes of the evaluation, investigation, or assessment,
interview the child or request an MDIT interview, and shall wherever
possible avoid repeated interviews of the child.
(5) Request a forensic medical examination of the child from the
appropriate agency, or include in the report required by paragraph
(6) a written statement explaining why the examination is not needed.
(6) File a confidential written report with the clerk of the court
in which the custody hearing will be conducted and which shall be
served on the parties or their attorneys at least 10 days prior to
the hearing. This report may not be made available other than as
provided in this subdivision. This report shall include, but is not
limited to, the following:
(A) Documentation of material interviews, including any MDIT
interview of the child or the evaluator or investigator, written
documentation of interviews with both parents by the evaluator or
investigator, and interviews with other witnesses who provided
relevant information.
(B) A summary of any law enforcement investigator's investigation,
including information obtained from the criminal background check of
the parents and any suspected perpetrator that is not a parent,
including information regarding child abuse, domestic violence, or
substance abuse.
(C) Relevant background material, including, but not limited to, a
summary of a written report from any therapist treating the child
for suspected child sexual abuse, excluding any communication subject
to Section 1014 of the Evidence Code, reports from other
professionals, and the results of any forensic medical examination
and any other medical examination or treatment that could help
establish or disprove whether the child has been the victim of sexual
abuse.
(D) The written recommendations of the evaluator or investigator
regarding the therapeutic needs of the child and how to ensure the
safety of the child.
(E) A summary of the following information: whether the child and
his or her parents are or have been the subject of a child abuse
investigation and the disposition of that investigation; the name,
location, and telephone number of the children's services worker; the
status of the investigation and the recommendations made or
anticipated to be made regarding the child's safety; and any
dependency court orders or findings that might have a bearing on the
custody dispute.
(F) Any information regarding the presence of domestic violence or
substance abuse in the family that has been obtained from a child
protective agency in accordance with paragraphs (1) and (2), a law
enforcement agency, medical personnel or records, prior or currently
treating therapists, excluding any communication subject to Section
1014 of the Evidence Code, or from interviews conducted or reviewed
for this evaluation, investigation, or assessment.
(G) Which, if any, family members are known to have been deemed
eligible for assistance from the Victims of Crime Program due to
child abuse or domestic violence.
(H) Any other information the evaluator or investigator believes
would be helpful to the court in determining what is in the best
interests of the child.
(c) If the evaluator or investigator obtains information as part
of a family court mediation, that information shall be maintained in
the family court file, which is not subject to subpoena by either
party. If, however, the members of the family are the subject of an
ongoing child welfare services investigation, or the evaluator or
investigator has made a child welfare services referral, the
evaluator or investigator shall so inform the family law judicial
officer in writing and this information shall become part of the
family law file. This subdivision may not be construed to authorize
or require a mediator to disclose any information not otherwise
authorized or required by law to be disclosed.
(d) In accordance with subdivision (d) of Section 11167 of the
Penal Code, the evaluator or investigator may not disclose any
information regarding the identity of any person making a report of
suspected child abuse. Nothing in this section is intended to limit
any disclosure of information by any agency that is otherwise
required by law or court order.
(e) The evaluation, investigation, or assessment standards set
forth in this section represent minimum requirements of evaluation
and the court shall order further evaluation beyond these minimum
requirements when necessary to determine the safety needs of the
child.
(f) If the court orders an evaluation, investigation, or
assessment pursuant to this section, the court shall consider whether
the best interests of the child require that a temporary order be
issued that limits visitation with the parent against whom the
allegations have been made to situations in which a third person
specified by the court is present or whether visitation will be
suspended or denied in accordance with Section 3011.
(g) An evaluation, investigation, or assessment pursuant to this
section shall be suspended if a petition is filed to declare the
child a dependent child of the juvenile court pursuant to Section 300
of the Welfare and Institutions Code, and all information gathered
by the evaluator or investigator shall be made available to the
juvenile court.
(h) This section may not be construed to authorize a court to
issue any orders in a proceeding pursuant to this division regarding
custody or visitation with respect to a minor child who is the
subject of a dependency hearing in juvenile court or to otherwise
supersede Section 302 of the Welfare and Institutions Code.
EXCLUSIVE CUSTODY: FAMILY.CODE
SECTION 3120-3121
3120. Without filing a petition for dissolution of marriage or
legal separation of the parties, the husband or wife may bring an
action for the exclusive custody of the children of the marriage.
The court may, during the pendency of the action, or at the final
hearing thereof, or afterwards, make such order regarding the
support, care, custody, education, and control of the children of the
marriage as may be just and in accordance with the natural rights of
the parents and the best interest of the children. The order may be
modified or terminated at any time thereafter as the natural rights
of the parties and the best interest of the children may require.
3121. (a) In any proceeding pursuant to Section 3120, and in any
proceeding subsequent to entry of a related judgment, the court shall
ensure that each party has access to legal representation to
preserve each party's rights by ordering, if necessary based on the
income and needs assessments, one party, except a government entity,
to pay to the other party, or to the other party's attorney, whatever
amount is reasonably necessary for attorney's fees and for the cost
of maintaining or defending the proceeding during the pendency of the
proceeding.
(b) Whether one party shall be ordered to pay attorney's fees and
costs for another party, and what amount shall be paid, shall be
determined based upon (1) the respective incomes and needs of the
parties, and (2) any factors affecting the parties' respective
abilities to pay. A party who lacks the financial ability to hire an
attorney may request, as an in pro per litigant, that the court
order the other party, if that other party has the financial ability,
to pay a reasonable amount to allow the unrepresented party to
retain an attorney in a timely manner before proceedings in the
matter go forward.
(c) Attorney's fees and costs within this section may be awarded
for legal services rendered or costs incurred before or after the
commencement of the proceeding.
(d) The court shall augment or modify the original award for
attorney's fees and costs as may be reasonably necessary for the
prosecution or defense of a proceeding described in Section 3120, or
any proceeding related thereto, including after any appeal has been
concluded.
(e) Except as provided in paragraph (g), an application for a
temporary order making, augmenting, or modifying an award of attorney'
s fees, including a reasonable retainer to hire an attorney, or
costs, or both, shall be made by motion on notice or by an order to
show cause during the pendency of any proceeding described in Section
3120.
(f) The court shall rule on an application for fees under this
section within 15 days of the hearing on the motion or order to show
cause. An order described in subdivision (a) may be made without
notice by an oral motion in open court at either of the following
times:
(1) At the time of the hearing of the cause on the merits.
(2) At any time before entry of judgment against a party whose
default has been entered pursuant to Section 585 or 586 of the Code
of Civil Procedure. The court shall rule on any motion made pursuant
to this subdivision within 15 days and prior to the entry of any
judgment.
FAMILY.CODE
SECTION 3585-3587
3585. The provisions of an agreement between the parents for child
support shall be deemed to be separate and severable from all other
provisions of the agreement relating to property and support of the
wife or husband. An order for child support based on the agreement
shall be law-imposed and shall be made under the power of the court
to order child support.
3586. If an agreement between the parents combines child support
and spousal support without designating the amount to be paid for
child support and the amount to be paid for spousal support, the
court is not required to make a separate order for child support.
3587. Notwithstanding any other provision of law, the court has the
authority to approve a stipulated agreement by the parents to pay
for the support of an adult child or for the continuation of child
support after a child attains the age of 18 years and to make a
support order to effectuate the agreement.
TEMPORARY CHILD SUPPORT DURING PROCEEDINGS: FAMILY.CODE
SECTION 3600-3604
3600. During the pendency of any proceeding for dissolution of
marriage or for legal separation of the parties or under Division 8
(commencing with Section 3000) (custody of children) or in any
proceeding where there is at issue the support of a minor child or a
child for whom support is authorized under Section 3901 or 3910, the
court may order (a) the husband or wife to pay any amount that is
necessary for the support of the wife or husband, consistent with the
requirements of subdivisions (i) and (m) of Section 4320 and Section
4325, or (b) either or both parents to pay any amount necessary for
the support of the child, as the case may be.
3601. (a) An order for child support entered pursuant to this
chapter continues in effect until the order (1) is terminated by the
court or (2) terminates by operation of law pursuant to Sections
3900, 3901, 4007, and 4013.
(b) Subject to Section 3602, subdivision (a) applies
notwithstanding any other provision of law and notwithstanding that
the proceeding has not been brought to trial within the time limits
specified in Chapter 1.5 (commencing with Section 583.110) of Title 8
of Part 2 of the Code of Civil Procedure.
3602. Unless the order specifies otherwise, an order made pursuant
to this chapter is not enforceable during any period in which the
parties have reconciled and are living together.
3603. An order made pursuant to this chapter may be modified or
terminated at any time except as to an amount that accrued before the
date of the filing of the notice of motion or order to show cause to
modify or terminate.
3604. An order made pursuant to this chapter does not prejudice the
rights of the parties or the child with respect to any subsequent
order which may be made.
SOFTWARE USED TO CALULATE SUPPORT: FAMILY.CODE
SECTION 3830
3830. (a) On and after January 1, 1994, no court shall use any
computer software to assist in determining the appropriate amount of
child support or spousal support obligations, unless the software
conforms to rules of court adopted by the Judicial Council
prescribing standards for the software, which shall ensure that it
performs in a manner consistent with the applicable statutes and
rules of court for determination of child support or spousal support.
(b) The Judicial Council may contract with an outside agency or
organization to analyze software to ensure that it conforms to the
standards established by the Judicial Council. The cost of this
analysis shall be paid by the applicant software producers and fees
therefor shall be established by the Judicial Council in an amount
that in the aggregate will defray its costs of administering this
section.
DUTY OF CHILD SUPPORT OF A MINOR CHILD: FAMILY.CODE
SECTION 3900-3902
3900. Subject to this division, the father and mother of a minor
child have an equal responsibility to support their child in the
manner suitable to the child's circumstances.
3901. (a) The duty of support imposed by Section 3900 continues as
to an unmarried child who has attained the age of 18 years, is a
full-time high school student, and who is not self-supporting, until
the time the child completes the 12th grade or attains the age of 19
years, whichever occurs first.
(b) Nothing in this section limits a parent's ability to agree to
provide additional support or the court's power to inquire whether an
agreement to provide additional support has been made.
3902. The court may direct that an allowance be made to the parent
of a child for whom support may be ordered out of the child's
property for the child's past or future support, on conditions that
are proper, if the direction is for the child's benefit.
CHILD SUPPORT GENERAL PROVISIONS COURT ORDERED CHILD SUPPORT: FAMILY.CODE
SECTION 4000-4014
4000. If a parent has the duty to provide for the support of the
parent's child and willfully fails to so provide, the other parent,
or the child by a guardian ad litem, may bring an action against the
parent to enforce the duty.
4001. In any proceeding where there is at issue the support of a
minor child or a child for whom support is authorized under Section
3901 or 3910, the court may order either or both parents to pay an
amount necessary for the support of the child.
4002. (a) The county may proceed on behalf of a child to enforce
the child's right of support against a parent.
(b) If the county furnishes support to a child, the county has the
same right as the child to secure reimbursement and obtain
continuing support. The right of the county to reimbursement is
subject to any limitation otherwise imposed by the law of this state.
(c) The court may order the parent to pay the county reasonable
attorney's fees and court costs in a proceeding brought by the county
pursuant to this section.
4003. In any case in which the support of a child is at issue, the
court may, upon a showing of good cause, order a separate trial on
that issue. The separate trial shall be given preference over other
civil cases, except matters to which special precedence may be given
by law, for assigning a trial date. If the court has also ordered a
separate trial on the issue of custody pursuant to Section 3023, the
two issues shall be tried together.
4004. In a proceeding where there is at issue the support of a
child, the court shall require the parties to reveal whether a party
is currently receiving, or intends to apply for, public assistance
under the Family Economic Security Act of 1982 (Chapter 2 (commencing
with Section 11200) of Part 3 of Division 9 of the Welfare and
Institutions Code) for the maintenance of the child.
4005. At the request of either party, the court shall make
appropriate findings with respect to the circumstances on which the
order for support of a child is based.
4006. In a proceeding for child support under this code, including,
but not limited to, Division 17 (commencing with Section 17000), the
court shall consider the health insurance coverage, if any, of the
parties to the proceeding.
4007. (a) If a court orders a person to make specified payments for
support of a child during the child's minority, or until the child
is married or otherwise emancipated, or until the death of, or the
occurrence of a specified event as to, a child for whom support is
authorized under Section 3901 or 3910, the obligation of the person
ordered to pay support terminates on the happening of the
contingency. The court may, in the original order for support, order
the custodial parent or other person to whom payments are to be made
to notify the person ordered to make the payments, or the person's
attorney of record, of the happening of the contingency.
(b) If the custodial parent or other person having physical
custody of the child, to whom payments are to be made, fails to
notify the person ordered to make the payments, or the attorney of
record of the person ordered to make the payments, of the happening
of the contingency and continues to accept support payments, the
person shall refund all moneys received that accrued after the
happening of the contingency, except that the overpayments shall
first be applied to any support payments that are then in default.
4008. The community property, the quasi-community property, and the
separate property may be subjected to the support of the children in
the proportions the court determines are just.
4009. An original order for child support may be made retroactive
to the date of filing the petition, complaint, or other initial
pleading. If the parent ordered to pay support was not served with
the petition, complaint, or other initial pleading within 90 days
after filing and the court finds that the parent was not
intentionally evading service, the child support order shall be
effective no earlier than the date of service.
4010. In a proceeding in which the court orders a payment for the
support of a child, the court shall, at the time of providing written
notice of the order, provide the parties with a document describing
the procedures by which the order may be modified.
4011. Payment of child support ordered by the court shall be made
by the person owing the support payment before payment of any debts
owed to creditors.
4012. Upon a showing of good cause, the court may order a parent
required to make a payment of child support to give reasonable
security for the payment.
4013. If obligations for support of a child are discharged in
bankruptcy, the court may make all proper orders for the support of
the child that the court determines are just.
4014. (a) Any order for child support issued or modified pursuant
to this chapter shall include a provision requiring the obligor and
child support obligee to notify the other parent or, if the order
requires payment through an agency designated under Title IV-D of the
Social Security Act (42 U.S.C. Sec. 651, et seq.), the agency named
in the order, of the name and address of his or her current employer.
(b) The requirements set forth in this subdivision apply only in
cases in which the local child support agency is not providing child
support services pursuant to Section 17400. To the extent required
by federal law, and subject to applicable confidentiality provisions
of state or federal law, any judgment for paternity and any order for
child support entered or modified pursuant to any provision of law
shall include a provision requiring the child support obligor and
obligee to file with the court all of the following information:
(1) Residential and mailing address.
(2) Social security number.
(3) Telephone number.
(4) Driver's license number.
(5) Name, address, and telephone number of the employer.
(6) Any other information prescribed by the Judicial Council.
The judgment or order shall specify that each parent is
responsible for providing his or her own information, that the
information must be filed with the court within 10 days of the court
order, and that new or different information must be filed with the
court within 10 days after any event causing a change in the
previously provided information.
(c) The requirements set forth in this subdivision shall only
apply in cases in which the local child support agency is not
providing child support services pursuant to Section 17400. Once the
child support registry, as described in Section 16576 of the Welfare
and Institutions Code is operational, any judgment for paternity and
any order for child support entered or modified pursuant to any
provision of law shall include a provision requiring the child
support obligor and obligee to file and keep updated the information
specified in subdivision (b) with the child support registry.
(d) The Judicial Council shall develop forms to implement this
section. The forms shall be developed so as not to delay the
implementation of the Statewide Child Support Registry described in
Section 16576 of the Welfare and Institutions Code and shall be
available no later than 30 days prior to the implementation of the
Statewide Child Support Registry.
STATEWIDE UNIFORM GUIDELINE: FAMILY.CODE
SECTION 4000-4014: FAMILY.CODE
SECTION 4050-4076
4050. In adopting the statewide uniform guideline provided in this
article, it is the intention of the Legislature to ensure that this
state remains in compliance with federal regulations for child
support guidelines.
4051. This article takes effect on July 1, 1992.
4052. The court shall adhere to the statewide uniform guideline and
may depart from the guideline only in the special circumstances set
forth in this article.
4053. In implementing the statewide uniform guideline, the courts
shall adhere to the following principles:
(a) A parent's first and principal obligation is to support his or
her minor children according to the parent's circumstances and
station in life.
(b) Both parents are mutually responsible for the support of their
children.
(c) The guideline takes into account each parent's actual income
and level of responsibility for the children.
(d) Each parent should pay for the support of the children
according to his or her ability.
(e) The guideline seeks to place the interests of children as the
state's top priority.
(f) Children should share in the standard of living of both
parents. Child support may therefore appropriately improve the
standard of living of the custodial household to improve the lives of
the children.
(g) Child support orders in cases in which both parents have high
levels of responsibility for the children should reflect the
increased costs of raising the children in two homes and should
minimize significant disparities in the children's living standards
in the two homes.
(h) The financial needs of the children should be met through
private financial resources as much as possible.
(i) It is presumed that a parent having primary physical
responsibility for the children contributes a significant portion of
available resources for the support of the children.
(j) The guideline seeks to encourage fair and efficient
settlements of conflicts between parents and seeks to minimize the
need for litigation.
(k) The guideline is intended to be presumptively correct in all
cases, and only under special circumstances should child support
orders fall below the child support mandated by the guideline
formula.
(l) Child support orders must ensure that children actually
receive fair, timely, and sufficient support reflecting the state's
high standard of living and high costs of raising children compared
to other states.
4054. (a) The Judicial Council shall periodically review the
statewide uniform guideline to recommend to the Legislature
appropriate revisions.
(b) The review shall include economic data on the cost of raising
children and analysis of case data, gathered through sampling or
other methods, on the actual application of the guideline after the
guideline's operative date. The review shall also include an
analysis of guidelines and studies from other states, and other
research and studies available to or undertaken by the Judicial
Council.
(c) Any recommendations for revisions to the guideline shall be
made to ensure that the guideline results in appropriate child
support orders, to limit deviations from the guideline, or otherwise
to help ensure that the guideline is in compliance with federal law.
(d) The Judicial Council may also review and report on other
matters, including, but not limited to, the following:
(1) The treatment of the income of a subsequent spouse or
nonmarital partner.
(2) The treatment of children from prior or subsequent
relationships.
(3) The application of the guideline in a case where a payer
parent has extraordinarily low or extraordinarily high income, or
where each parent has primary physical custody of one or more of the
children of the marriage.
(4) The benefits and limitations of a uniform statewide spousal
support guideline and the interrelationship of that guideline with
the state child support guideline.
(5) Whether the use of gross or net income in the guideline is
preferable.
(6) Whether the guideline affects child custody litigation or the
efficiency of the judicial process.
(7) Whether the various assumptions used in computer software used
by some courts to calculate child support comport with state law and
should be made available to parties and counsel.
(e) The initial review by the Judicial Council shall be submitted
to the Legislature and to the Department of Child Support Services
on or before December 31, 1993, and subsequent reviews shall occur at
least every four years thereafter unless federal law requires a
different interval.
(f) In developing its recommendations, the Judicial Council shall
consult with a broad cross-section of groups involved in child
support issues, including, but not limited to, the following:
(1) Custodial and noncustodial parents.
(2) Representatives of established women's rights and fathers'
rights groups.
(3) Representatives of established organizations that advocate for
the economic well-being of children.
(4) Members of the judiciary, district attorney's offices, the
Attorney General's office, and the Department of Child Support
Services.
(5) Certified family law specialists.
(6) Academicians specializing in family law.
(7) Persons representing low-income parents.
(8) Persons representing recipients of assistance under the
CalWORKs program seeking child support services.
(g) In developing its recommendations, the Judicial Council shall
seek public comment and shall be guided by the legislative intent
that children share in the standard of living of both of their
parents.
4055. (a) The statewide uniform guideline for determining child
support orders is as follows: CS = K (HN - (H%) (TN)).
(b) (1) The components of the formula are as follows:
(A) CS = child support amount.
(B) K = amount of both parents' income to be allocated for child
support as set forth in paragraph (3).
(C) HN = high earner's net monthly disposable income.
(D) H% = approximate percentage of time that the high earner has
or will have primary physical responsibility for the children
compared to the other parent. In cases in which parents have
different time-sharing arrangements for different children, H% equals
the average of the approximate percentages of time the high earner
parent spends with each child.
(E) TN = total net monthly disposable income of both parties.
(2) To compute net disposable income, see Section 4059.
(3) K (amount of both parents' income allocated for child support)
equals one plus H% (if H% is less than or equal to 50 percent) or
two minus H% (if H% is greater than 50 percent) times the following
fraction:
Total Net Disposable
Income Per Month K
$0-800 0.20 + TN/16,000
$801-6,666 0.25
$6,667-10,000 0.10 + 1,000/TN
Over $10,000 0.12 + 800/TN
For example, if H% equals 20 percent and the total monthly net
disposable income of the parents is $1,000, K = (1 + 0.20) X 0.25, or
0.30. If H% equals 80 percent and the total monthly net disposable
income of the parents is $1,000, K = (2 - 0.80) X 0.25, or 0.30.
(4) For more than one child, multiply CS by:
2 children 1.6
3 children 2
4 children 2.3
5 children 2.5
6 children 2.625
7 children 2.75
8 children 2.813
9 children 2.844
10 children 2.86
(5) If the amount calculated under the formula results in a
positive number, the higher earner shall pay that amount to the lower
earner. If the amount calculated under the formula results in a
negative number, the lower earner shall pay the absolute value of
that amount to the higher earner.
(6) In any default proceeding where proof is by affidavit pursuant
to Section 2336, or in any proceeding for child support in which a
party fails to appear after being duly noticed, H% shall be set at
zero in the formula if the noncustodial parent is the higher earner
or at 100 if the custodial parent is the higher earner, where there
is no evidence presented demonstrating the percentage of time that
the noncustodial parent has primary physical responsibility for the
children. H% shall not be set as described above if the moving party
in a default proceeding is the noncustodial parent or if the party
who fails to appear after being duly noticed is the custodial parent.
A statement by the party who is not in default as to the percentage
of time that the noncustodial parent has primary physical
responsibility for the children shall be deemed sufficient evidence.
(7) In all cases in which the net disposable income per month of
the obligor is less than one thousand dollars ($1,000), there shall
be a rebuttable presumption that the obligor is entitled to a
low-income adjustment. The presumption may be rebutted by evidence
showing that the application of the low-income adjustment would be
unjust and inappropriate in the particular case. In determining
whether the presumption is rebutted, the court shall consider the
principles provided in Section 4053, and the impact of the
contemplated adjustment on the respective net incomes of the obligor
and the obligee. The low-income adjustment shall reduce the child
support amount otherwise determined under this section by an amount
that is no greater than the amount calculated by multiplying the
child support amount otherwise determined under this section by a
fraction, the numerator of which is 1,000 minus the obligor's net
disposable income per month, and the denominator of which is 1,000.
(8) Unless the court orders otherwise, the order for child support
shall allocate the support amount so that the amount of support for
the youngest child is the amount of support for one child, and the
amount for the next youngest child is the difference between that
amount and the amount for two children, with similar allocations for
additional children. However, this paragraph does not apply to cases
in which there are different time-sharing arrangements for different
children or where the court determines that the allocation would be
inappropriate in the particular case.
(c) If a court uses a computer to calculate the child support
order, the computer program shall not automatically default
affirmatively or negatively on whether a low-income adjustment is to
be applied. If the low-income adjustment is applied, the computer
program shall not provide the amount of the low-income adjustment.
Instead, the computer program shall ask the user whether or not to
apply the low-income adjustment, and if answered affirmatively, the
computer program shall provide the range of the adjustment permitted
by paragraph (7) of subdivision (b).
4056. (a) To comply with federal law, the court shall state, in
writing or on the record, the following information whenever the
court is ordering an amount for support that differs from the
statewide uniform guideline formula amount under this article:
(1) The amount of support that would have been ordered under the
guideline formula.
(2) The reasons the amount of support ordered differs from the
guideline formula amount.
(3) The reasons the amount of support ordered is consistent with
the best interests of the children.
(b) At the request of any party, the court shall state in writing
or on the record the following information used in determining the
guideline amount under this article:
(1) The net monthly disposable income of each parent.
(2) The actual federal income tax filing status of each parent
(for example, single, married, married filing separately, or head of
household and number of exemptions).
(3) Deductions from gross income for each parent.
(4) The approximate percentage of time pursuant to paragraph (1)
of subdivision (b) of Section 4055 that each parent has primary
physical responsibility for the children compared to the other
parent.
4057. (a) The amount of child support established by the formula
provided in subdivision (a) of Section 4055 is presumed to be the
correct amount of child support to be ordered.
(b) The presumption of subdivision (a) is a rebuttable presumption
affecting the burden of proof and may be rebutted by admissible
evidence showing that application of the formula would be unjust or
inappropriate in the particular case, consistent with the principles
set forth in Section 4053, because one or more of the following
factors is found to be applicable by a preponderance of the evidence,
and the court states in writing or on the record the information
required in subdivision (a) of Section 4056:
(1) The parties have stipulated to a different amount of child
support under subdivision (a) of Section 4065.
(2) The sale of the family residence is deferred pursuant to
Chapter 8 (commencing with Section 3800) of Part 1 and the rental
value of the family residence in which the children reside exceeds
the mortgage payments, homeowner's insurance, and property taxes.
The amount of any adjustment pursuant to this paragraph shall not be
greater than the excess amount.
(3) The parent being ordered to pay child support has an
extraordinarily high income and the amount determined under the
formula would exceed the needs of the children.
(4) A party is not contributing to the needs of the children at a
level commensurate with that party's custodial time.
(5) Application of the formula would be unjust or inappropriate
due to special circumstances in the particular case. These special
circumstances include, but are not limited to, the following:
(A) Cases in which the parents have different time-sharing
arrangements for different children.
(B) Cases in which both parents have substantially equal
time-sharing of the children and one parent has a much lower or
higher percentage of income used for housing than the other parent.
(C) Cases in which the children have special medical or other
needs that could require child support that would be greater than the
formula amount.
4057.5. (a) (1) The income of the obligor parent's subsequent
spouse or nonmarital partner shall not be considered when determining
or modifying child support, except in an extraordinary case where
excluding that income would lead to extreme and severe hardship to
any child subject to the child support award, in which case the court
shall also consider whether including that income would lead to
extreme and severe hardship to any child supported by the obligor or
by the obligor's subsequent spouse or nonmarital partner.
(2) The income of the obligee parent's subsequent spouse or
nonmarital partner shall not be considered when determining or
modifying child support, except in an extraordinary case where
excluding that income would lead to extreme and severe hardship to
any child subject to the child support award, in which case the court
shall also consider whether including that income would lead to
extreme and severe hardship to any child supported by the obligee or
by the obligee's subsequent spouse or nonmarital partner.
(b) For purposes of this section, an extraordinary case may
include a parent who voluntarily or intentionally quits work or
reduces income, or who intentionally remains unemployed or
underemployed and relies on a subsequent spouse's income.
(c) If any portion of the income of either parent's subsequent
spouse or nonmarital partner is allowed to be considered pursuant to
this section, discovery for the purposes of determining income shall
be based on W2 and 1099 income tax forms, except where the court
determines that application would be unjust or inappropriate.
(d) If any portion of the income of either parent's subsequent
spouse or nonmarital partner is allowed to be considered pursuant to
this section, the court shall allow a hardship deduction based on the
minimum living expenses for one or more stepchildren of the party
subject to the order.
(e) The enactment of this section constitutes cause to bring an
action for modification of a child support order entered prior to the
operative date of this section.
4058. (a) The annual gross income of each parent means income from
whatever source derived, except as specified in subdivision (c) and
includes, but is not limited to, the following:
(1) Income such as commissions, salaries, royalties, wages,
bonuses, rents, dividends, pensions, interest, trust income,
annuities, workers' compensation benefits, unemployment insurance
benefits, disability insurance benefits, social security benefits,
and spousal support actually received from a person not a party to
the proceeding to establish a child support order under this article.
(2) Income from the proprietorship of a business, such as gross
receipts from the business reduced by expenditures required for the
operation of the business.
(3) In the discretion of the court, employee benefits or
self-employment benefits, taking into consideration the benefit to
the employee, any corresponding reduction in living expenses, and
other relevant facts.
(b) The court may, in its discretion, consider the earning
capacity of a parent in lieu of the parent's income, consistent with
the best interests of the children.
(c) Annual gross income does not include any income derived from
child support payments actually received, and income derived from any
public assistance program, eligibility for which is based on a
determination of need. Child support received by a party for
children from another relationship shall not be included as part of
that party's gross or net income.
4059. The annual net disposable income of each parent shall be
computed by deducting from his or her annual gross income the actual
amounts attributable to the following items or other items permitted
under this article:
(a) The state and federal income tax liability resulting from the
parties' taxable income. Federal and state income tax deductions
shall bear an accurate relationship to the tax status of the parties
(that is, single, married, married filing separately, or head of
household) and number of dependents. State and federal income taxes
shall be those actually payable (not necessarily current withholding)
after considering appropriate filing status, all available
exclusions, deductions, and credits. Unless the parties stipulate
otherwise, the tax effects of spousal support shall not be considered
in determining the net disposable income of the parties for
determining child support, but shall be considered in determining
spousal support consistent with Chapter 3 (commencing with Section
4330) of Part 3.
(b) Deductions attributed to the employee's contribution or the
self-employed worker's contribution pursuant to the Federal Insurance
Contributions Act (FICA), or an amount not to exceed that allowed
under FICA for persons not subject to FICA, provided that the
deducted amount is used to secure retirement or disability benefits
for the parent.
(c) Deductions for mandatory union dues and retirement benefits,
provided that they are required as a condition of employment.
(d) Deductions for health insurance or health plan premiums for
the parent and for any children the parent has an obligation to
support and deductions for state disability insurance premiums.
(e) Any child or spousal support actually being paid by the parent
pursuant to a court order, to or for the benefit of any person who
is not a subject of the order to be established by the court. In the
absence of a court order, any child support actually being paid, not
to exceed the amount established by the guideline, for natural or
adopted children of the parent not residing in that parent's home,
who are not the subject of the order to be established by the court,
and of whom the parent has a duty of support. Unless the parent
proves payment of the support, no deduction shall be allowed under
this subdivision.
(f) Job-related expenses, if allowed by the court after
consideration of whether the expenses are necessary, the benefit to
the employee, and any other relevant facts.
(g) A deduction for hardship, as defined by Sections 4070 to 4073,
inclusive, and applicable published appellate court decisions. The
amount of the hardship shall not be deducted from the amount of child
support, but shall be deducted from the income of the party to whom
it applies. In applying any hardship under paragraph (2) of
subdivision (a) of Section 4071, the court shall seek to provide
equity between competing child support orders. The Judicial Council
shall develop a formula for calculating the maximum hardship
deduction and shall submit it to the Legislature for its
consideration on or before July 1, 1995.
4060. The monthly net disposable income shall be computed by
dividing the annual net disposable income by 12. If the monthly net
disposable income figure does not accurately reflect the actual or
prospective earnings of the parties at the time the determination of
support is made, the court may adjust the amount appropriately.
4061. The amounts in Section 4062, if ordered to be paid, shall be
considered additional support for the children and shall be computed
in accordance with the following:
(a) If there needs to be an apportionment of expenses pursuant to
Section 4062, the expenses shall be divided one-half to each parent,
unless either parent requests a different apportionment pursuant to
subdivision (b) and presents documentation which demonstrates that a
different apportionment would be more appropriate.
(b) If requested by either parent, and the court determines it is
appropriate to apportion expenses under Section 4062 other than
one-half to each parent, the apportionment shall be as follows:
(1) The basic child support obligation shall first be computed
using the formula set forth in subdivision (a) of Section 4055, as
adjusted for any appropriate rebuttal factors in subdivision (b) of
Section 4057.
(2) Any additional child support required for expenses pursuant to
Section 4062 shall thereafter be ordered to be paid by the parents
in proportion to their net disposable incomes as adjusted pursuant to
subdivisions (c) and (d).
(c) In cases where spousal support is or has been ordered to be
paid by one parent to the other, for purposes of allocating
additional expenses pursuant to Section 4062, the gross income of the
parent paying spousal support shall be decreased by the amount of
the spousal support paid and the gross income of the parent receiving
the spousal support shall be increased by the amount of the spousal
support received for as long as the spousal support order is in
effect and is paid.
(d) For purposes of computing the adjusted net disposable income
of the parent paying child support for allocating any additional
expenses pursuant to Section 4062, the net disposable income of the
parent paying child support shall be reduced by the amount of any
basic child support ordered to be paid under subdivision (a) of
Section 4055. However, the net disposable income of the parent
receiving child support shall not be increased by any amount of child
support received.
4062. (a) The court shall order the following as additional child
support:
(1) Child care costs related to employment or to reasonably
necessary education or training for employment skills.
(2) The reasonable uninsured health care costs for the children as
provided in Section 4063.
(b) The court may order the following as additional child support:
(1) Costs related to the educational or other special needs of the
children.
(2) Travel expenses for visitation.
4063. (a) When making an order pursuant to paragraph (2) of
subdivision (a) of Section 4062, the court shall:
(1) Advise each parent, in writing or on the record, of his or her
rights and liabilities, including financial responsibilities.
(2) Include in its order the time period for a parent to reimburse
the other parent for the reimbursing parent's share of the
reasonable additional child support costs subject to the requirements
of this section.
(b) Unless there has been an assignment of rights pursuant to
Section 11477 of the Welfare and Institutions Code, when either
parent accrues or pays costs pursuant to an order under this section,
that parent shall provide the other parent with an itemized
statement of the costs within a reasonable time, but not more than 30
days after accruing the costs. These costs shall then be paid as
follows:
(1) If a parent has already paid all of these costs, that parent
shall provide proof of payment and a request for reimbursement of his
or her court-ordered share to the other parent.
(2) If a parent has paid his or her court-ordered share of the
costs only, that parent shall provide proof of payment to the other
parent, request the other parent to pay the remainder of the costs
directly to the provider, and provide the reimbursing parent with any
necessary information about how to make the payment to the provider.
(3) The other parent shall make the reimbursement or pay the
remaining costs within the time period specified by the court, or, if
no period is specified, within a reasonable time not to exceed 30
days from notification of the amount due, or according to any payment
schedule set by the health care provider for either parent unless
the parties agree in writing to another payment schedule or the court
finds good cause for setting another payment schedule.
(4) If the reimbursing parent disputes a request for payment, that
parent shall pay the requested amount and thereafter may seek
judicial relief under this section and Section 290. If the
reimbursing parent fails to pay the other parent as required by this
subdivision, the other parent may seek judicial relief under this
section and Section 290.
(c) Either parent may file a noticed motion to enforce an order
issued pursuant to this section. In addition to the court's powers
under Section 290, the court may award filing costs and reasonable
attorney's fees if it finds that either party acted without
reasonable cause regarding his or her obligations pursuant to this
section.
(d) There is a rebuttable presumption that the costs actually paid
for the uninsured health care needs of the children are reasonable,
except as provided in subdivision (e).
(e) Except as provided in subdivision (g):
(1) The health care insurance coverage, including, but not limited
to, coverage for emergency treatment, provided by a parent pursuant
to a court order, shall be the coverage to be utilized at all times,
consistent with the requirements of that coverage, unless the other
parent can show that the health care insurance coverage is inadequate
to meet the child's needs.
(2) If either parent obtains health care insurance coverage in
addition to that provided pursuant to the court order, that parent
shall bear sole financial responsibility for the costs of that
additional coverage and the costs of any care or treatment obtained
pursuant thereto in excess of the costs that would have been incurred
under the health care insurance coverage provided for in the court
order.
(f) Except as provided in subdivision (g):
(1) If the health care insurance coverage provided by a parent
pursuant to a court order designates a preferred health care
provider, that preferred provider shall be used at all times,
consistent with the terms and requirements of that coverage.
(2) If either parent uses a health care provider other than the
preferred provider inconsistent with the terms and requirements of
the court-ordered health care insurance coverage, the parent
obtaining that care shall bear the sole responsibility for any
nonreimbursable health care costs in excess of the costs that would
have been incurred under the court-ordered health care insurance
coverage had the preferred provider been used.
(g) When ruling on a motion made pursuant to this section, in
order to ensure that the health care needs of the child under this
section are met, the court shall consider all relevant facts,
including, but not limited to, the following:
(1) The geographic access and reasonable availability of necessary
health care for the child which complies with the terms of the
health care insurance coverage paid for by either parent pursuant to
a court order.
(2) The necessity of emergency medical treatment that may have
precluded the use of the health care insurance, or the preferred
health care provider required under the insurance, provided by either
parent pursuant to a court order.
(3) The special medical needs of the child.
(4) The reasonable inability of a parent to pay the full amount of
reimbursement within a 30-day period and the resulting necessity for
a court-ordered payment schedule.
4064. The court may adjust the child support order as appropriate
to accommodate seasonal or fluctuating income of either parent.
4065. (a) Unless prohibited by applicable federal law, the parties
may stipulate to a child support amount subject to approval of the
court. However, the court shall not approve a stipulated agreement
for child support below the guideline formula amount unless the
parties declare all of the following:
(1) They are fully informed of their rights concerning child
support.
(2) The order is being agreed to without coercion or duress.
(3) The agreement is in the best interests of the children
involved.
(4) The needs of the children will be adequately met by the
stipulated amount.
(5) The right to support has not been assigned to the county
pursuant to Section 11477 of the Welfare and Institutions Code and no
public assistance application is pending.
(b) The parties may, by stipulation, require the child support
obligor to designate an account for the purpose of paying the child
support obligation by electronic funds transfer pursuant to Section
4508.
(c) A stipulated agreement of child support is not valid unless
the local child support agency has joined in the stipulation by
signing it in any case in which the local child support agency is
providing services pursuant to Section 17400. The local child
support agency shall not stipulate to a child support order below the
guideline amount if the children are receiving assistance under the
CalWORKs program, if an application for public assistance is pending,
or if the parent receiving support has not consented to the order.
(d) If the parties to a stipulated agreement stipulate to a child
support order below the amount established by the statewide uniform
guideline, no change of circumstances need be demonstrated to obtain
a modification of the child support order to the applicable guideline
level or above.
4066. Orders and stipulations otherwise in compliance with the
statewide uniform guideline may designate as "family support" an
unallocated total sum for support of the spouse and any children
without specifically labeling all or any portion as "child support"
as long as the amount is adjusted to reflect the effect of additional
deductibility. The amount of the order shall be adjusted to
maximize the tax benefits for both parents.
4067. It is the intent of the Legislature that the statewide
uniform guideline shall be reviewed by the Legislature at least every
four years and shall be revised by the Legislature as appropriate to
ensure that its application results in the determination of
appropriate child support amounts. The review shall include
consideration of changes required by applicable federal laws and
regulations or recommended from time to time by the Judicial Council
pursuant to Section 4054.
4068. (a) The Judicial Council may develop the following:
(1) Model worksheets to assist parties in determining the
approximate amount of child support due under the formula provided in
subdivision (a) of Section 4055 and the approximate percentage of
time each parent has primary physical responsibility for the
children.
(2) A form to assist the courts in making the findings and orders
required by this article.
(b) The Judicial Council, in consultation with representatives of
the State Department of Social Services, the California Family
Support Council, the Senate Judiciary Committee, the Assembly
Judiciary Committee, the Family Law Section of the State Bar of
California, a legal services organization providing representation on
child support matters, a custodial parent group, and a noncustodial
parent group, shall develop a simplified income and expense form for
determining child support under the formula provided in subdivision
(a) of Section 4055, by June 1, 1995. The Judicial Council, also in
consultation with these groups, shall develop factors to use to
determine when the simplified income and expense form may be used and
when the standard income and expense form must be used.
4069. The establishment of the statewide uniform guideline
constitutes a change of circumstances.
4070. If a parent is experiencing extreme financial hardship due to
justifiable expenses resulting from the circumstances enumerated in
Section 4071, on the request of a party, the court may allow the
income deductions under Section 4059 that may be necessary to
accommodate those circumstances.
4071. (a) Circumstances evidencing hardship include the following:
(1) Extraordinary health expenses for which the parent is
financially responsible, and uninsured catastrophic losses.
(2) The minimum basic living expenses of either parent's natural
or adopted children for whom the parent has the obligation to support
from other marriages or relationships who reside with the parent.
The court, on its own motion or on the request of a party, may allow
these income deductions as necessary to accommodate these expenses
after making the deductions allowable under paragraph (1).
(b) The maximum hardship deduction under paragraph (2) of
subdivision (a) for each child who resides with the parent may be
equal to, but shall not exceed, the support allocated each child
subject to the order. For purposes of calculating this deduction,
the amount of support per child established by the statewide uniform
guideline shall be the total amount ordered divided by the number of
children and not the amount established under paragraph (8) of
subdivision (b) of Section 4055.
(c) The Judicial Council may develop tables in accordance with
this section to reflect the maximum hardship deduction, taking into
consideration the parent's net disposable income before the hardship
deduction, the number of children for whom the deduction is being
given, and the number of children for whom the support award is being
made.
4072. (a) If a deduction for hardship expenses is allowed, the
court shall do both of the following:
(1) State the reasons supporting the deduction in writing or on
the record.
(2) Document the amount of the deduction and the underlying facts
and circumstances.
(b) Whenever possible, the court shall specify the duration of the
deduction.
4073. The court shall be guided by the goals set forth in this
article when considering whether or not to allow a financial hardship
deduction, and, if allowed, when determining the amount of the
deduction.
4074. This article applies to an award for the support of children,
including those awards designated as "family support," that contain
provisions for the support of children as well as for the support of
the spouse.
4075. This article shall not be construed to affect the treatment
of spousal support and separate maintenance payments pursuant to
Section 71 of the Internal Revenue Code of 1954 (26 U.S.C. Sec. 71).
4076. (a) Whenever the court is requested to modify a child support
order issued prior to July 1, 1992, for the purpose of conforming to
the statewide child support guideline, and it is not using its
discretionary authority to depart from the guideline pursuant to
paragraph (3), (4), or (5) of subdivision (b) of Section 4057, and
the amount of child support to be ordered is the amount provided
under the guideline formula in subdivision (a) of Section 4055, the
court may, in its discretion, order a two-step phasein of the formula
amount of support to provide the obligor with time for transition to
the full formula amount if all of the following are true:
(1) The period of the phasein is carefully limited to the time
necessary for the obligor to rearrange his or her financial
obligations in order to meet the full formula amount of support.
(2) The obligor is immediately being ordered to pay not less than
30 percent of the amount of the child support increase, in addition
to the amount of child support required under the prior order.
(3) The obligor has not unreasonably increased his or her
financial obligations following notice of the motion for modification
of support, has no arrearages owing, and has a history of good faith
compliance with prior support orders.
(b) Whenever the court grants a request for a phasein pursuant to
this section, the court shall state the following in writing:
(1) The specific reasons why (A) the immediate imposition of the
full formula amount of support would place an extraordinary hardship
on the obligor, and (B) this extraordinary hardship on the obligor
would outweigh the hardship caused the supported children by the
temporary phasein of the full formula amount of support.
(2) The full guideline amount of support, the date and amount of
each phasein, and the date that the obligor must commence paying the
full formula amount of support, which in no event shall be later than
one year after the filing of the motion for modification of support.
(c) In the event the court orders a phasein pursuant to this
section, and the court thereafter determines that the obligor has
violated the phasein schedule or has intentionally lowered the income
available for the payment of child support during the phasein
period, the court may order the immediate payment of the full formula
amount of child support and the difference in the amount of support
that would have been due without the phasein and the amount of
support due with the phasein, in addition to any other penalties
provided for by law.
http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=fam
How is the amount of child support determined?
Child support is determined using guidelines established by California law. Child support guidelines are based on each parent's monthly income and the amount of time the child is cared for by each parent.
For the purpose of deciding child support, the court will consider income from all sources, whether or not it is reported or taxed under federal law. The income can be in the form of money, property, or services and includes:
Wages from a job
Tips
Commissions
Bonuses
Self-employment earnings
Unemployment benefits
Disability and workers' compensation
Interest
Dividends
Rental income
Social Security or pensions
Any payments or credits due or becoming due, regardless of the source, including lottery and prize winnings.
The court will deduct certain payments from each parent's gross monthly income to determine the net disposable income. Payments that may be deducted includes taxes, mandatory union dues, mandatory retirement contributions, health premiums, child or spousal support actually being paid, and costs of raising children from another relationship. The court will use the net disposable income of each parent, and the percent of time each parent spends with a child to set the child support amount.
What if either parent losses a job or is earning more money, will child support automatically be changed?
A child support order can only be changed by a new order or a stipulation approved by the court. The local child support agency will not automatically review a child support order for modification. Either parent may request a review of the child support case if there is a change in circumstances. Support orders may be changed if there has been a substantial change in circumstances, such as, an increase or decrease in either parent's earnings, a change in custody, or a change in the amount of time the child spends with each parent.
You must contact the local child support agency handling the child support order to request a modification of the child support order and then cooperate in the review process by providing the requested financial information.
You may also file a motion directly with the court regarding the modification of a child support order. You may contact the Family Law Facilitator's office in your county of residence for help in filing the motion. For a complete list of Family Law Facilitators, please refer to the following website: Family Law Facilitator.
would like to spend more time with my child, how do I change the visitation schedule?
The Department of Child Support Services only handles matters related to child support. Custody and visitation issues must be addressed through the courts.
Every county has a Family Law Facilitator at the courthouse to provide child support information and assistance to parents. Family Law Facilitators help parents obtain and complete court forms and all services provided are free of charge. The Family Law Facilitators do not work for the local child support agency.
There are child support advocacy groups or legal aid services available in many communities. The Ombudsperson at the local child support agency has a list of advocacy groups for custodial parents and non-custodial parents.
How can I get a copy of the California Child Support Handbook?
You can obtain a copy of California Child Support Handbook from your local child support agency. You may also obtain a copy by clicking the following link: Child Support Handbook.
http://www.childsup.cahwnet.gov/faq.asp
Child Support
Child support is the amount of money that the court orders one parent to pay the other parent every month for the support of the child(ren). California has a formula (called a "guideline") for figuring out how much child support should be paid in all cases. Click here to learn more about how child support is calculated.
Child support payments are usually made until children turn 18, or 19 if they are still in high school full time, living at home, and can't support themselves. Parents may agree to support a child longer. The court may also order that both parents continue to support a disabled adult child that is not self-supporting. Click here to learn more about when child support ends.
http://www.courtinfo.ca.gov/selfhelp/family/support/intro.htm
Family Law Facilitators
Every court in California has a lawyer that will help you with family law problems for free. These lawyers are called "family law facilitators." The facilitators can't be your lawyer, but they can help in other ways. In some counties, they show people how to fill out court forms. They can give you brochures about family law and tell you about other places to get help, like lawyer referral services, legal aid clinics, and self-help law centers.
Not all Family Law Facilitator offices are able to assist with dissolution (divorce) and custody issues. Some counties limit services to child support, spousal support and health insurance in on-going cases. Contact the local Facilitator office for further information. http://www.courtinfo.ca.gov/selfhelp/family/support/flf.htm
What is a family law facilitator?
A family law facilitator is a lawyer with experience in family law who works for the superior court in your county to help parents and children involved in family law cases with child, spousal, and partner support problems.
What does the family law facilitator do?
The family law facilitator gives you educational materials that explain how to:
Establish parentage; and
Get, change, or enforce child, spousal, or partner support orders.
The family law facilitator can also:
Give you the court forms you need;
Help you fill out your forms;
Help you figure out support amounts; and
Refer you to your local child support agency, family court services, and other community agencies that help parents and children.
The family law facilitator in your county may be able to help you in other ways, too. Contact your local family law facilitator to learn more.http://www.courtinfo.ca.gov/selfhelp/lowcost/flf.htm
http://www.childsup.cahwnet.gov/regulati...
Use the above to find out your states laws, and or talk with your attorney.
If I'm not mistaken there each state has its own guide on what the court is able to ask from the absent parent in terms of monetary support aka Child Support Money.
**http://www.acf.hhs.gov/programs/cse/**...
All states and territories run a child support enforcement program, usually in the human services department, department of revenue, or the state Attorney General’s office, often with the help of prosecuting attorneys, district attorneys, other law enforcement agencies and officials of family or domestic relations courts. Native American Tribes, too, can operate culturally appropriate child support programs with Federal funding. Families seeking government child support services must apply directly through their state/local agency or one of the tribes running the program. Services are available to a parent with custody of a child whose other parent is living outside the home. Services are available automatically for families receiving assistance under the Temporary Assistance for Needy Families (TANF) program.
**Establishing Support Orders go to http://www.acf.hhs.gov/programs/cse... this is California's State Websit of Child Support Enforcement.
You will be able to find out where your local support office is located.
States must have guidelines to determine how much a parent should pay for child support. Child support orders can be established by a court or by an administrative hearing process. Provisions for health insurance coverage must be included in the support order.
Source(s):
http://www.acf.hhs.gov/programs/cse/...
http://www.childsup.cahwnet.gov/regulati...
I hope all of this helps, as these are some things you should read up on so that you know where you stand in a legal aspect. It never hurts to know the same things that your lawyer knows. Its always best to be better informed than to have to assume that your attorney is doing what is in the best interest of your child and yourself.