As a general rule, California malicious prosecution actions are dicey propositions insofar as they always subject the plaintiff to a potential Anti-SLAPP motion from the defendant pursuant to California Code of Civil Procedure section 425.16.   At a minimum, such a motion requires the plaintiff to immediately produce admissible evidence establishing the malicious prosecution claim.  The failure to produce such evidence causes the dismissal of the case and may result in the plaintiff having to pay the defendant’s reasonable attorney fees for bringing the motion.   Malicious prosecution cases arising out of family law court matters are even more problematic.

As a general rule, for public policy reasons plaintiffs are not entitled to bring malicious prosecution actions stemming from matters originating in the family law courts. Bidna v. Rosen (1993) 19 Cal.App.4^th 27.  A very narrow exception to the Bidna rule was carved out by Nicholson v. Fazeli (2003) 113 Cal.App.4^th 1091, wherein a wife was permitted to maintain a malicious prosecution complaint against a Trust (which had previously filed a cross-complaint in the wife marital dissolution action) because the Trust’s cross-complaint did not implicate any family law issues (i.e., it did not specifically involve allegations related to marital status, child custody, spousal support, or the division of community property).  Because the Trust’s cross-complaint was a fairly rare animal (the vast majority of all family law court pleadings will involve some family law issue), parties contemplating filing a malicious prosecution action arising out of a family law court are strongly advised to consult with an attorney to obtain advice before filing a complaint that might be immediately dismissed and, even worse, might subject the party to paying the other side’s attorney fees. source

Proving the “Prior Action” Requirement of a Malicious Prosecution Case

How To Sue For Malicious Prosecution For A Civil (Not Criminal) Lawsuit.

You get sued.  They claim to be the “victim,” but you are the real victim.  You are being sued based on a falsehood … for their improper motives.  Can you strike back for justice?

Victims often ask lawyers whether they can sue for malicious prosecution.  Situations arise when a victim has been sued wrongfully.  They have stress.  They have legal expenses.  Other costs come in.  The wrongful lawsuit damages their reputation.  It may even be damage their credit rating.

Some victims merely want emotional support.  They want someone to tell them they are right, the person that sued them is wrong, and provide sympathy.  That is certainly the expected role of family, and friends.  It is a whole other matter entirely to counter – sue the person and attempt to win money from them.

The Benefits of Malicious Prosecution Suits

Malicious prosecution lawsuits have three main benefits:

1. Compensation for out of pocket and other expenses.
2. Deter or prevent the wrongdoer from wrongfully suing others in the future.
3. Deter other similar wrongdoers from creating victims.

The same legal analysis must be completed regardless of whether you are a victim or an attorney.  This article explains the process in a civil setting.  Look to our companion article on criminal cases.

The Technical Legal Test to Win at Malicious Prosecution

The traditional elements of a lawsuit for malicious prosecution are as follows:

1. The commencement or prosecution of a proceeding against the victim;
2. “Legal Causation” by the present defendant;
3. The lawsuit’s termination in favor of the present plaintiff;
4. The absence of probable cause for the proceeding;
5. The presence of malice;
6. Damage to the victim.

State ex rel. O’Basuyi v. Vincent, 434 S.W.3d 517, 519 (Mo. banc 2014);

Bonzo v. Kroger Grocery and Baking Co., 125 S.W.2d 75 (Mo. 1939);

Higgins v. Knickmeyer-Fleer Realty and Investment Co., 74 S.W.2d 805,812 (Mo. 1934).

This is the traditional law for malicious prosecution.  Is it confusing you?  There is an easier analysis.

The Easier to Understand Test for Malicious Prosecution

The Missouri Approved Instructions for a jury trial present a straightforward analysis for evaluating potential malicious prosecution cases.  It is meant for ordinary people to understand and will be easier for you.

The test for malicious prosecution is as follows:

• First, did the wrongdoer instigate or continue a judicial proceeding (a lawsuit) against the victim (you) that the victim won?
• Second, in doing that, did the wrongdoer acted maliciously and without reasonable grounds?
• Third, was the victim damaged?

Paraphrase of M.A.I. 23.07 (2000 Rev.).

What Does “Maliciously” mean?

You may have noticed some technical terms.  They are important.  The first term is “maliciously.”  In a civil setting, maliciously means intentionally doing a wrongful act without just cause or excuse.  It does not necessarily mean hatred, spite, or ill will.  M.A.I. 16.01 (1) (1996 new); see also Sanders v. Daniel Intern Corp., 682 S.W.2d 803 (Mo. banc 1984); and Proctor v. Stevens Employment Services, Inc., 712 S.W.2d 684 (Mo. banc 1986).

What Is Reasonable Grounds?

Reasonable grounds is also needed for your analysis of whether you have a malicious prosecution case.  Luckily, reasonable grounds is defined.  “Reasonable grounds” means the existence of facts which would cause an ordinarily careful person to believe plaintiff (the victim) was guilty of the offense charged.  See Palcher v. JC Nichols Co., 783 S.W.2d 166 (Mo. App. 1990).

Our Law Dislikes Malicious Prosecution Cases

Malicious prosecution cases are not favored in the law.  Stafford v. Muster, 582 S.W.2d 670, 675 (Mo. banc 1979).  Because of this, you as the victim must be prepared to provide “strict and clear proof” of each of the elements of malicious prosecution.  Id.

Probable Cause Weighs In Too!

The second element of malicious prosecution requiring reasonable grounds is closely related to probable cause.  You should plan on addressing the probable cause elements as part of your malicious prosecution case.

The Missouri Supreme Court has set out a definition for probable cause in civil cases.  It is as follows:

1. The person’s beliefs in the facts alleged,
2. Based upon sufficient circumstances to reasonably induce such belief by a person of ordinary prudence in the same situation, plus
3. A reasonable belief that under the facts the claim may be valid under the applicable law.

Holly v. Caulfield, 49 S.W.3d 747, 750-51 (Mo. App. 2001).

The Easy to Understand Test for Probable Cause

Basically, you need to ask yourself the following questions:

• Did the person who sued you believe the facts they were alleging?
• Would any reasonable person believe those facts?
• Did the law allow a lawsuit against you; under those facts, assuming they were true?

Can I Get Punitive Damages To Punish?

Punitive damages are called “exemplary damages” and are not favored by the courts, much like malicious prosecution cases.  To get punishment damages in a malicious prosecution case, “the proceedings must have been initiated or continued primarily for a purpose other than that of securing the proper Judication of the claim on which they are based.”  Proctor v. Stevens Employment Services, Inc., 712 S.W.2d 684 (6, 7) (Mo. banc 1986).  Remember that punitive damages require a separate determination by the court by “clear and convincing evidence,” which is a higher standard.  Remember, who you are suing must have acted with a conscious disregard for your rights.  I encourage you look to my article on punitive damages to see the specific elements of that cause of action.

Conclusion

Malicious prosecution cases are complex and have many legal requirements, as you can see.  This is why malicious prosecution is so often an accusation and so seldom an actual lawsuit.

Usually, these lawsuits come about when it is either debt collector who does not care what the facts are and sues as many people as they can to collect money.  Secondly, we see malicious prosecution lawsuits when it is an actual person who is just suing to “get at” somebody.  I wish you luck in your analysis and hope any victims can receive just compensation based upon our analysis. source

Learn more about these sujects

• Malicious Prosecution
• Prosecutional Misconduct
• Vindictive Prosecution
• Retaliatory Prosecution
• Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution 

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

learn more about Anti-SLAPP:

Anti-SLAPP Law in California 1st Amendment Freedom of Press & Speech

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation 

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

Prior to the California Supreme Court’s decision in Wilson vs. Cable News Network, Inc., California Courts of Appeal were split on whether California’s anti-SLAPP statute applied to an employee’s claims of discrimination and retaliation.  The Supreme Court in Wilson resolved this split in favor of the statute’s application, bringing a welcome bit of good (albeit narrowly tailored) news to California employers.

California Code of Civil Procedure section 425.16 is referred to as the anti-SLAPP statute.  The term “SLAPP” refers to Strategic Lawsuits Against Public Participation, which are meritless lawsuits brought against critics in order to silence their criticism.  Section 425.16 was first passed by the California legislature in 1992 due to its concern that real estate developers were attempting to bully project opponents into submission by filing frivolous litigation.  This section provides a procedure for a defendant to challenge a pleading via a special motion to strike.  In order to succeed on the challenge, the defendant must demonstrate that the claim or claims at issue arise out of protected speech or petitioning activity.  If the defendant can make this showing, then the burden shifts to the plaintiff to demonstrate that the claim or claims have probable validity.  If the plaintiff makes this showing, then the defendant’s motion is denied. If not, then the claim or claims at issue are dismissed and the defendant is entitled to his, her, or its attorneys’ fees and costs.

With this in mind, it is clear that the anti-SLAPP laws can be a powerful weapon if wielded correctly.  And that is where the Supreme Court’s decision in Wilson comes into play,  both with good news and bad news.

First the good news.  Prior to Wilson, some California Courts of Appeal had held that the anti-SLAPP statute does not apply to claims of discrimination and/or retaliation by an employer.  The reasoning of these courts was that a claim for discrimination and retaliation did not arise out of any protected speech or petitioning activity by the employer, even if the alleged adverse action implicated protected speech or petitioning activity.  Rather, such actions arose out of the employer’s improper motivation in proceeding with the allegedly improper contact.  For this reason, employer defendants could not satisfy the first prong of the anti-SLAPP statute.

The Supreme Court in Wilson rejected that reasoning and held that while claims for discrimination and retaliation do arise out of an employer’s improper motivation, they also arise out of the adverse action itself, which action may implicate protected speech.  For this reason, and if the adverse action at issue does implicate conduct protected by the anti-SLAPP statute, the statute applies regardless of the allegations of improper motive.

This brings us to the bad news.  Specifically, the category of cases and situations in which an employer’s alleged discrimination and retaliation implicates protected speech or petitioning activity for the purposes of the anti-SLAPP statute is limited.  This is particularly true of private employers whose operations do not generally concern issues of public concern, which play a significant role in the relevant analysis.  In Wilson, such conduct was implicated because the defendant was CNN – an international news organization reporting on international events.  The same will generally not be true for a restaurant or general contractor who is alleged to have discriminated or retaliated against one of its employees.

Despite its narrow application, Wilson is good news for California employers and a case that needs to be kept in mind when defending against employment claims to determine if there is a way to tie such claims to protected speech.  Beyond that, Wilson is also helpful in defending against arguments that laws of general application do not apply in the employment context. source

learn more about Anti-SLAPP:

Anti-SLAPP Law in California 1st Amendment Freedom of Press & Speech

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation 

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Anti Slapp Law Resources:

Anti-SLAPP Law in California

Anti-SLAPP and Free Speech in Defamation & Emotional Distress Cases

Attorney Liability for Meritless Litigation Leading to Harm

Court tosses disbarred lawyer’s suit over newspaper article

If I want to change a custody or visitation order, do I have to go back to the same court that made the order?

Change Of Venue California Family Law Code Of Civil Procedure 397.5

Family Law Code of Civil Procedure 397.5 is a pretty specific code section that says;
In any proceeding for dissolution or nullity of marriage or legal separation of the parties under the Family Code, where it appears that both petitioner and respondent have moved from the county rendering the order, the court may, when the ends of justice and the convenience of the parties would be promoted by the change, order that the proceedings be transferred to the county of residence of either party. source

A court may, in its discretion, choose to refrain from exercising its jurisdiction to hear a case if the case may be more appropriately tried elsewhere. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744).

On a motion for forum non conveniens 

“Forum non conveniens” is a Latin phrase that means “an inconvenient forum”. It’s a common law doctrine that allows a court to decline to exercise its jurisdiction when another court or forum may more conveniently hear a case. The doctrine allows a court to dismiss a case if it believes that the case would be better heard in another court. For example, a court might dismiss a lawsuit arising from an accident if the plaintiff files the complaint in their home state, but the witnesses and doctors are in the state where the accident occurred.

California codified this principle, known as forum non conveniens, in Code of Civil Procedure section 410.30.” Code of Civil Procedure section 410.30, subdivision (a),(2) provides as follows: “When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may by just.“ Courts sometimes reframe the question as whether the chosen forum is “seriously” inconvenient. The party seeking change venue has the burden of proof.

When a motion to change venue is made on the grounds of “convenience of witnesses and the ends of justice” pursuant to Code Civ. Proc. §396b, the party tendering that issue bears the burden of showing through affidavits, declarations or other admissible evidence, both the reasons it would be inconvenient for witnesses to attend, and the materiality of their anticipated testimony. (Flanagan v. Flanagan (1959) 175 Cal.App.2d 641, 643, 346 P.2d 418.)

The declarations must be competent evidence, i.e. should not consist solely of hearsay, generalities and conclusions. (Lieppman v. Lieber (1986) 180 Cal.App.3d 914, 919, 225 Cal.Rptr. 845). 

Child custody: where is the proper venue for deciding child custody matters; change of venue

THE DIFFERENCE BETWEEN JURISDICTION AND VENUE IN CUSTODY MATTERS.

Jurisdiction refers to the power of courts in a particular state to make decisions about custody.  Venue refers to the particular judicial geographic area,  usually the County, within a state where the action should be filed and heard. learn more about venue here

JURISDICTION OVER CUSTODY ISSUES

Any California court has jurisdiction to make an initial decision about the custody and visitation for a minor child if the child has been living continuously in California with a parent or person acting as a parent for the six months immediately before the commencement of the proceeding involving child custody matters.

Once a California court has issued a custody order and/or judgment, California has continuing and exclusive jurisdiction over subsequent issues involving custody and visitation.  California’s jurisdiction over the modification or enforcement of the order continues until a court determines that the child and the parents no longer reside in California, or a California court determines that the child and one of the parents does not have a significant connection to California, and substantial evidence is no longer available in California concerning the child’s care, protection, training and personal relationships.

VENUE OVER CUSTODY ISSUES

Assuming the child has been living in California for six months, any California court will have jurisdiction to handle such a case, however, the county in which the action should be brought, i.e. the venue, is where at least one of the parties has resided for at least three months in the case of a divorce, and for an initial petition involving custody without a divorce, the county where the child and a parent or person acting as a parent resides.

Any post judgment issues involving custody should be brought in the county where the underlying order or judgment has been issued, subject to a motion for change of venue in appropriate circumstances.

CHANGING VENUE AT THE BEGINNING OF THE DIVORCE OR OTHER CUSTODY PROCEEDING

Assuming jurisdiction and venue is otherwise appropriate, a party may ask the court to change venue “when the convenience of witnesses and the ends of justice would be promoted by the change.“ [California Code of Civil Procedure section 397 subdivision [c], & subdivision (e).]  Note that it is the convenience of the witnesses, and not the convenience of the parties. [Although it could be argued that the convenience of the party would fall under the ends of justice rationale].

Factors considered by the court include where evidence and witnesses concerning the child’s care, protection, training and personal relationships can be found, where the children and parties reside and the general convenience of keeping or changing venue. Courts have broad discretion in making decisions around changing venue [assuming that venue is not otherwise prohibited by statute], and they are largely fact driven determinations, dependent on the particular circumstances of each case.

Typically, the motion for a change of venue must be brought early in the action, and in any and event, “within a reasonable time” after commencement of the action, or from when the reasons for the change of venue become apparent.

CHANGING VENUE AFTER THE DIVORCE JUDGMENT HAS BEEN ISSUED.

Change of venue after a divorce judgment has been issued is appropriate when both parties have moved from the county that issued the divorce judgment, “when the ends of justice and the convenience of the parties would be promoted by the change.” [California Code of Civil Procedure section 397.5] Note in this situation it is the convenience of the parties, and not just witnesses.

It is an open question whether a post judgment motion for change of venue would be appropriate when only one of the parties has moved out of the county where the divorce judgment was entered.

It certainly could be argued that since the statute dealing with a post-judgment change of venue covers situations where both parties have moved out of the county, it is implied that it is not appropriate to change the venue where only one party has moved out of the county because the legislature could have said only one party need have moved if that’s they intended to allow a change of venue in either situation.

On the other hand, if the party who has moved out of County has sole or primary custody, it is arguable that a change of venue might be warranted under the general statute dealing with the grounds for a change of venue [California Code of Civil Procedure section 397], assuming those grounds, such as the convenience of the witnesses and the ends of justice, support such a move.

Since the courts have broad discretion in deciding change of venue motions, it is likely the court’s decision either way would be upheld if challenged on appeal. source

if you are failing to get the rights you deserve and change of venue is denied and all other avenues are exhausted try looking into

CHANGE OF VENUE  [CCP §396b] – Change of Venue Form

or download the editable word file .doc here motionchangevenue

forum non conveniens

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Forum non conveniens refers to a court’s discretionary power to decline to exercise its jurisdiction where another court, or forum, may more conveniently hear a case. Dismissing a case on forum non conveniens grounds is not a bar for res judicata purposes and, therefore, does not prevent a plaintiff from re-filing their case in the more appropriate forum. This doctrine may be invoked by either the defendant, or sua sponte by the court.

Even if a plaintiff brings a case in an inconvenient forum, a court will not grant a forum non conveniens dismissal unless there is another forum that could hear the case and potentially recover damages. Additionally, courts will not grant a forum non conveniens dismissal where the alternative forum’s judicial system is grossly inadequate. For example, an American court would not grant a forum non conveniens dismissal where the alternative forum was Cuba.

Courts typically use a 2-part test to determine whether they will grant a defendant’s forum non conveniens motion. The first part is a balancing test of both private and public factors, and the second part looks at what adequate alternative courts are available.

• Balancing Test

  • Private Factors
    • Ease of access to evidence
    • Interest of the two parties in their connections with the respective forums
    • The plaintiff’s chosen court would be burdensome to the defendant
    • If a court finds this factor to be true, then that is often sufficient to dismiss the case and accept a forum non conveniens claim
    • Ease of obtaining witnesses
    • Enforceability of judgment
  • Public Factors
    • Whether the trial would involve multiple sets of laws, thus potentially confusing a jury
    • Having juries who may have a connection to the case
    • Local interest in having local interests heard at home
    • Having the trial in a place where state laws govern

• Adequate Alternative Inquiry Test

  • The defendant must offer an alternate court that is able to hear the case
  • The alternate court must have the ability to provide a remedy to the plaintiff

A court will typically only invoke forum non conveniens sua sponte if it meets a 2-step test:

1. The court is a seriously inappropriate forum.
2. There is a substantially more appropriate court that is available for the plaintiff’s claim.

Sometimes, courts attach conditions to forum non conveniens dismissals. For example, the court might require the defendant to waive defenses that would prevent the plaintiff from re-filing the suit in the alternative forum. Alternatively, a court might dismiss the case in favor of a foreign court, but only on the condition that the defendant allow discovery.

On appeal, forum non conveniens decisions are evaluated using an abuse of discretion standard.

The Supreme Court considered forum non conveniens in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). In that case, the Court held that so long as there was a remedy available in the alternate forum, it did not matter if the remedy was clearly insufficient. However, lower courts do not strictly follow this rule. Instead, they usually consider the adequacy of the alternative forum’s remedy as another factor to be balanced when deciding whether or not to grant a forum non conveniens dismissal.

The Supreme Court has heard two cases on the issue of forum non conveniens in recent years:

In Sinochem International Co. Ltd. v. Malaysia International Shipping Corp, the Supreme Court held that that a federal court may hear and pass a ruling on a forum non conveniens motion even if that court does not necessarily have subject-matter jurisdiction or personal jurisdiction over the case in front of the court. The Court decided that while courts typically need to consider personal jurisdiction and subject-matter jurisdiction before hearing a case on the merits, this procedure does not necessarily apply when considering non merits issues.

The second case was Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas, which determined that courts should use 28 U.S.C. 1404(a), which allows for the transfer of cases between jurisdiction, for the purposes of granting a forum non conveniens motion. source

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

Penal Code 135 PC – Destroying or Concealing Evidence

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 32 PC – Accessory After the Fact

Penal Code 31 PC – Aiding and Abetting Laws

What is Abuse of Process? When the Government Fails Us

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

 Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

 Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court? 

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case 

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?

Tort Claims Form File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

Federal –  Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States

GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Police BodyCam Footage Release

Electronic Audio Recording Request of OC Court Hearings

The American Civil Liberties Union, along with 12 ACLU state affiliates, filed an amicus brief with the U.S. Supreme Court today urging the court to uphold the constitutionality of the Indian Child Welfare Act.

WASHINGTON — The American Civil Liberties Union, along with 12 ACLU state affiliates, filed an amicus brief with the U.S. Supreme Court today urging the court to uphold the constitutionality of the Indian Child Welfare Act. The Indian Child Welfare Act (ICWA) — which establishes basic requirements to protect Native American children from continued forced removal from their families, tribes, and tribal culture — is slated to be reviewed by the Supreme Court this fall via Brackeen v. Haaland.

The Indian Child Welfare Act was passed by Congress in 1978 to address the nationwide epidemic of American Indian children being forcibly removed from their homes by child welfare agencies and placed into non-Native homes at disproportionate rates. Throughout history, federal and state governments have sought to undermine and threaten the existence of tribes via the forced separation and assimilation of Native children. ICWA requires state courts to make active efforts to keep Native families together. The law aims to prioritize the placement of Native children within their extended families or tribal communities, where their cultural identities will be understood and celebrated. If the Supreme Court overturns ICWA, states would once again be allowed to indiscriminately remove Native children from their families and culture while simultaneously depriving tribes of future generations — putting the very existence of tribes in jeopardy.

“Throughout history, the United States government has enacted countless policies to steal Indigenous children from their homes and to erase their identities,” said Theodora Simon (Navajo), Indigenous Justice Advocate with the ACLU of Northern California. “The explicit goal of these policies was, and continues to be, the complete erasure of Indigenous people. If the Indian Child Welfare Act is overturned, tribes will again be stripped of their right to keep their families together. This is a tragedy as we know that having connection to our cultures, languages, and identities is in the best interest of Native children.”

Tribes have an inherent right to govern themselves and make decisions on issues that affect their people — including Native children. The ACLU’s brief argues the Indian Child Welfare Act is constitutional and urges the Supreme Court to uphold the centuries-long legal precedent upholding tribal sovereignty — including tribes’ right and ability to preserve their unique cultural identities, raise their own children and govern themselves.

“Separating children from their families and communities remains one of the most tragic and traumatizing vestiges of colonialism in Alaska,” said ACLU of Alaska Executive Director Mara Kimmel. “We join this litigation to honor our constitutional promise of tribal self-determination and to ensure Alaska’s children and cultures thrive into the future.”

The brief was filed by the ACLU, ACLU of NorCal, ACLU of Alaska, ACLU of Arizona, ACLU of Maine, ACLU of Montana, ACLU of Nebraska, ACLU of New Mexico, ACLU of Oklahoma, ACLU of South Dakota, North Dakota, and Wyoming chapter, ACLU of Texas, ACLU of Utah, and ACLU of Washington. The Supreme Court will hear oral arguments in Brackeen v Haaland on November 9, 2022.

This release can be found online here: 

A blog about the case can be found here: 

source 

MORE ABOUT THIS SUBJECT: learn more….

• Supreme Court upholds Indian Child Welfare Act – read here PROTECTING THE INDIAN CHILD WELFARE ACT AT THE federal LEVEL
• Click Here for Indian Child Court Forms
• DOCKET NO. No. B314238 in L. A. Cnty. Dep’t of Children & Family Servs. v. D.P. (In re Daphne G.) California Court of Appeals, Second District, First Division

• In re N.G. The Court also concluded that DPSS had to be ordered to further investigate N.G.’s paternal lineal ancestry

• L. A. Cnty. Dep’t of Children & Family Servs. v. Sandra C. (In re Ezra C.)

  • In Antoinette S., supra, 104 Cal.App.4th 1401,Both California Rules of Court, rule 5.481(a)(5)(A) and section 224.3 indicate that the ICWA notice requirement is triggered when a person who has an interest in the child “provides information suggesting that the child” is an Indian child. (Italics added.) Mother provided both a specific tribe and a specific family member from whom the ancestry followed. “The Indian status of the child need not be certain to invoke the notice requirement.” (Desiree F., supra, 83 Cal.App.4th at p. 471.) “The determination of a child’s Indian status is up to the tribe; therefore, the [dependency] court needs only a suggestion of Indian ancestry to trigger the notice requirement.” (Nikki R., supra, 106 Cal.App.4th at p. 848.)

• • In In re Alice M. (2008) 161 Cal.App.4th 1189 (Alice M.),
    the court held that notice was required after the mother submitted an ICWA-020 indicating that the child may be eligible for membership in an Apache or Navajo tribe. The appellate court held that the information provided on the ICWA-020 “gave the court reason to know [the child] may be an Indian child… The ambiguity in the form and the omission of more detailed information, such as specific tribal affiliation or tribal roll number, do not negate appellant’s stated belief that [the child] may be a member of a tribe or eligible for membership.” (Id. at p. 1198.)

• • (In re J.T. (1997) 166 Vt. 173, 182-83 [693 A.2d 283, 289]),
    Section 224.3 requires notice to the tribe when there is information provided by “[a] person having an interest in the child… suggesting the child is a member of a tribe or eligible for membership in a tribe or [that] one or more of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe.” (§ 224.3, subd. (b)(1), italics added.) California Rules of Court, rule 5.481(a)(5)(A) also specifies that “[t]he circumstances that may provide reason to know the child is an Indian child include…. [¶] [t]he child or a person having an interest in the child, … informs or otherwise provides information suggesting that the child is an Indian child to the court [or] the county welfare agency….” (Italics added.) “The determination of a child’s Indian status is up to the tribe; therefore, the [dependency] court needs only a suggestion of Indian ancestry to trigger the notice requirement.” (In re Nikki R. (2003) 106 Cal.App.4th 844, 848 (Nikki R.), italics added.)Determining whether enough information has been provided to trigger the ICWA notice provisions requires a fact-sensitive analysis. As noted in In re Pedro N. (1995) 35 Cal.App.4th 183, 186, “[t]he requisite notice to the tribe or [Bureau] serves a twofold purpose. First, it enables the tribe or [Bureau] to investigate and determine whether the minor is an ‘Indian child.’… [Citations.] Secondly, it advises the tribe or [Bureau] of the proceedings and the tribe’s right to exercise its jurisdiction in the matter or at least intervene in the proceedings. [Citations.]” (Fn. omitted.) Given these purposes “‘it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child.’” (Dwayne P., supra, 103 Cal.App.4th at p. 257, citing In re M.C.P. (1989) 153 Vt. 275, 289 [571 A.2d 627, 634-635].)

    The information required to trigger the ICWA notice provisions is minimal in comparison to the showing required “to establish a child is an Indian child within the meaning of ICWA.” (In re Miguel E. (2004) 120 Cal.App.4th 521, 549; see also Dwayne P., supra, 103 Cal.App.4th at p. 258 [the party initiating the dependency proceeding must “distinguish between a showing that may establish a child is an Indian child within the meaning of the ICWA and the minimal showing required to trigger the statutory notice provisions”].) While eligibility to enroll and enrollment are central to a finding that the child is an Indian child within the meaning of the ICWA, a lack of such information does not waive the court’s affirmative duty to provide notice when the court knows or has reason to know that an Indian child is involved. (§ 224.3; Cal. Rules of Court, rule 5.481(a)(5)(A).)

2023 California Rules of Court

Rule 5.487. Petition to invalidate orders

• (a) Who may petition
  Any Indian child who is the subject of any action for foster-care placement, guardianship or conservatorship placement, custody placement under Family Code section 3041, declaration freeing a child from the custody and control of one or both parents, preadoptive placement, adoptive placement, or termination of parental rights; any parent or Indian custodian from whose custody such child was removed; and the Indian child’s tribe may petition the court to invalidate the action on a showing that the action violated the Indian Child Welfare Act.
  (Subd (a) was amended effective January 1, 2020.)
• (b) Court of competent jurisdiction
  If the Indian child is a dependent child or ward of the juvenile court or the subject of a pending petition, the juvenile court is a court of competent jurisdiction with the authority to hear the request to invalidate the foster placement or termination of parental rights.
• (c) Request to return custody of the Indian child
  • If a final decree of adoption is vacated or set aside, or if the adoptive parents voluntarily consent to the termination of their parental rights, a biological parent or prior Indian custodian may request a return of custody of the Indian child.
    • (1)  The court must reinstate jurisdiction.
    • (2)  In a juvenile case, the juvenile court must hold a new disposition hearing in accordance with 25 United States Code section 1901 et seq. where the court may consider all placement options as stated in Welfare and Institutions Code sections 361.31(b), (c), (d), and (h).
    • (3)  The court may consider placement with a biological parent or prior Indian custodian if the biological parent or prior Indian custodian can show that placement with him or her is not detrimental to the child and that the placement is in the best interests of the child.
    • (4)  The hearing on the request to return custody of an Indian child must be conducted in accordance with statutory requirements and the relevant sections of this rule.

Rule 5.487 renumbered and amended effective January 1, 2020; adopted as rule 5.486 effective January 1, 2008; previously amended effective January 1, 2013

The Indian Child Welfare Act (ICWA) was passed by Congress in 1978 to protect American Indian and Alaska Native (AI/AN) children and families. Before ICWA, as many as one-third of all AI/AN children were removed from their homes by state child welfare and private adoption agencies, and the vast majority of these children were placed outside of their families and communities. This mass family separation resulted in devastating losses of language, culture, and identity for individuals, families, and entire Tribes. ICWA was created to address this history and prevent further generational trauma.

ICWA was ahead of its time in recognizing core values and principles of child welfare best practice by requiring active efforts to keep children safely in their homes and connected to their families, communities, and culture. This law does not affect all children — its provisions apply only in child welfare cases involving members of federally recognized Tribes, and the Tribes, per their sovereignty, have the ability to define membership. However, the values and spirit embedded in ICWA are critical to the well-being of AI/AN children, youth, and families and should form the basis of child welfare practice for all.

This brief describes four key principles inherent in ICWA, provides examples of these principles in practice, and offers questions for consideration to help agencies further explore how they should apply these principles to support the permanency and well-being of both Native and non-Native children, youth, and families.^1,2

Principle 1: Children’s right to their families and communities

ICWA specifically promotes children’s right to be connected to their extended family, elders, community, and culture. Sheldon Spotted Elk, program director of tribal justice relations at the National Council of Juvenile and Family Court Judges, describes these connections as concentric circles. When children are situated within these circles, they naturally build resilience. Awareness of connectedness to family, community, and environment has been found to be a protective factor for American Indian and Alaska Native youth.³

In recognition of the importance of these connections, ICWA has a higher standard to prevent removal of an Indian child from their families than other child welfare statutes — including a requirement that children may not be removed without the testimony of a culturally qualified expert witness, except in emergencies (narrowly defined as when a child is in danger of imminent harm). ICWA also governs placement decisions. When children must be removed from their homes, the law dictates that agencies and courts first consider placement with relatives or, if that is not possible, with other families within their Tribal community where they can remain connected to their culture and identity.

For Adams County (Colo.) Children and Family Services, this sometimes means putting extra supports in place or working with a family member to resolve barriers to placement approval. In one case, when a close family friend could take some but not all of a sibling group of four, the agency was able to license a second friend and neighbor to keep the siblings connected. As in this instance, tribal definitions of family relationships should be acknowledged in placement decisions whenever possible. 

The Native Village of Barrow (Alaska) lñupiat Traditional Government Children’s Code explicitly recognizes children’s right to family, extended family, and identity:

A child has the right to learn about and preserve his identity throughout his life, including the right to maintain ties to his birth parents, his extended family and his village. A child has the right to learn about and benefit from tribal history, culture, language, spiritual traditions, and philosophy.

The responsibility to support a child’s identity in these ways is assigned to parents, extended family members, and the Tribe as a whole. When separation from birth parents is necessary, the code specifies that the preferred placement is lñuguq, or placement with an extended family member. The word Iñuguq “refers to a traditional Inupiat adoption process in which a child gains, but does not lose, a parent.”  

Implementation of ICWA requirements currently falls far short of achieving the statute’s goal. AI/AN children are still three times more likely to be removed by state child welfare systems than non-Native children. While recognizing the particular urgency for AI/AN children, child welfare agencies also can act on the knowledge that all children fare best when they can remain safely with their own families, and that when they must be removed from their homes, placement with relatives produces the best outcomes. 

Questions to consider:

• In what ways do your agency’s policies assert and protect all children’s rights to their families, communities, and culture?
• How could your jurisdiction reassess removal criteria and keep more families safely together with in-home support? 
• How can your agency apply an equity lens to understanding and addressing the root causes of a family’s involvement with the agency?
• In what ways do your agency’s placement priorities and resource family approval policies align with ICWA by prioritizing placement for all children within their extended families and communities?
• How does your agency honor the definition of relatives as determined by the family, clan, and Tribe?

Principle 2: “Active efforts” to preserve and reunify families

ICWA’s requirement of “active efforts” is a higher standard of engagement than the Title IV-E program’s “reasonable efforts” requirement. Active efforts are defined in regulation as “affirmative, active, thorough, and timely” efforts by the agency to maintain or reunify children with their families.⁴ They are intended to help parents complete their case plans and access or develop resources necessary to keep or bring their child safely home. Examples include helping parents overcome barriers to services (such as making phone calls together rather than handing a parent a list of phone numbers), helping parents access supportive community resources (including housing, financial, and mental health support), and facilitating transportation to ensure parents and their children can attend appointments or visits.

Adams County acknowledges that providing active efforts can be time intensive. The county supports these efforts in ICWA cases by having a dedicated ICWA caseworker who is knowledgeable about the requirements. The county strives to keep that dedicated caseload low, when the agency’s workflow allows, to support spending extra time on each case. The ICWA caseworker also serves as an expert and resource throughout the agency, providing assistance to other caseworkers who may have ICWA cases.

ICWA requires that active efforts be provided in a culturally competent manner, and “in partnership with the Indian child and the Indian child’s parents, extended family members, Indian custodians, and tribe.” Regulations describe engaging with the child’s Tribe early to determine what types of services would be most culturally appropriate and what cultural resources or programs are available within the Tribe. It also includes ensuring all services are trauma-informed and follow best practices in addressing historical and intergenerational trauma. Being trauma-informed means that agencies must be skillful and patient in building trusting relationships with families and communities that may have significant personal and historical reasons to mistrust state and county government systems.

Questions to consider:

• What active efforts do your agency’s caseworkers regularly make to safely preserve and reunify all families? Do they equal the efforts everyone would want for their own families?
• What additional steps could help ensure that your agency’s efforts on behalf of all children and families are not just “reasonable” but “active”?
• In what ways does your agency consider children and parents’ culture when creating case plans and providing services? How could your agency better partner with families and their communities to ensure programs and services are culturally appropriate, and to ensure active efforts are successful? 
• In what ways could your agency’s services be more trauma-informed, particularly in addressing historical and intergenerational trauma? 
• How can your agency provide training and ongoing coaching and support to caseworkers to build relationships with families that are centered on trust and cultural humility? 

Principle 3: Valuing inclusive and diverse cultural practices

ICWA was created to address harm inflicted on AI/AN communities due to the imposition of dominant cultural values, including assimilation. Therefore, the law requires jurisdictions to view child welfare matters from a different cultural perspective — that of the family’s own tribal community. ICWA regulations state that jurisdictions are to “conduct Indian child-custody proceedings in a way that reflects the cultural and social standards prevailing in Indian communities and families.” 

One way this is done is requiring a qualified expert witness to testify from a social and cultural perspective as to whether children are at risk of serious emotional or physical harm, prior to removal. Jurisdictions with ICWA courts also have found that cultural training by local Tribes can greatly increase understanding and appreciation of a Tribe’s traditional child-rearing practices and cultural values. 

This change in approach requires cultural humility. In particular, child welfare professionals may need to critically analyze long-held assumptions about which family structures or communities can best support child well-being. For example, courts sometimes have required children in ICWA cases to be moved from unrelated foster homes to relatives’ homes, even after the children have bonded with the foster family. While this may contradict western ideas about the best interests of children, it is important to understand and honor Tribal values that prioritize long-term, multigenerational connections among family, Tribe, and culture over children’s short-term connections to one specific nuclear family. “The relationships that we develop with our tribal partners, and our understanding of their values, are so critical,” emphasizes District Judge Katherine R. Delgado, Adams County, Colo., ICWA Court, “I would encourage other judges and child welfare leaders to go visit some of their local Tribes, develop those relationships, and be open to understanding the issues that our Native Nations face.”

Questions to consider:

• What cultures are present among the children and families your agency serves? How can your agency learn more about the range of childrearing practices and values that exist in different cultures and communities?
• In what ways do dominant cultural assumptions influence agency decisions about the best interests of children? Is it possible that more children could remain safely with their families if these assumptions were reconsidered? What traditions and values are important to the family? 
• Are there language and literacy barriers to be mindful of? What kind of community support is needed for the family and caseworker to have a meaningful dialogue? 
• How could the concept of a culturally qualified expert witness be applied to non-ICWA child welfare cases?
• How might your agency work with local cultural resource providers to support greater cultural competence of services to families?
• How could your agency work alongside families and communities to better support healing for the generational and historical trauma experienced by children, youth, and families of color?

Principle 4: Authentic engagement with Tribes

ICWA provides for a Tribe to be included in child welfare cases concerning member children. Although the Tribe’s perspective does not always prevail, the law guarantees Tribes the right to participate fully in the case, be heard by the court, provide expert witnesses, and define placement preferences for their children. 

ICWA specialty courts make a particular effort to include Tribe leaders and representatives in all cases involving their children, something that COVID-era virtual hearings have made a little easier. This also can be facilitated by scheduling ICWA cases at a consistent date and time that is convenient for the Tribe so that representatives are present even at early shelter hearings that offer limited opportunities for advance notice. There is emerging evidence that when a Tribe representative is present at a child’s first hearing, permanency occurs four months faster on average and reunification occurs seven months faster. “I see big differences in how caseworkers are working with the Tribes, the response back from the Tribes, and their efforts to work together toward reunification,” notes Judge Kathleen Quigley, Pima County, Ariz., ICWA court, “Without the Tribe’s participation, our ICWA court would not be where it is.”

Some ICWA courts incorporate cultural art, Tribal flags, and Native practices such as smudging in the courtroom. Other jurisdictions have found that creating ICWA units with dedicated caseworkers, supervisors, and attorneys facilitates relationship-building and collaboration between the state, Tribe social workers, and any local culturally appropriate service providers. Family group conferences can offer another opportunity to invite Tribe representation and relinquish agency control of the process.

On a systems level, power-sharing might look like creating workgroups comprised of equal numbers of state representatives and Tribe members. For example, Washington’s Tribal State Workgroup is a joint effort to review and update the Department of Children, Youth, and Families’ ICWA policies and procedures.

Meeting Tribes and families where they are, beyond the walls of child welfare agency offices, demonstrates respect and can help build cross-cultural understanding. Judge Delgado of Adams County recalls the impact of a trip she took to visit several nearby tribal nations and meet with tribal judges: “That trip really cemented my passion for not only the black-letter law of ICWA, but the spirit of the law.” In Yellowstone County, Mont., members of the Yellowstone ICWA Court Team traveled more than 100 miles to meet with the Tribe’s Human Services Department to staff cases and to introduce themselves to new executive branch officials and Tribal Council members. During COVID, the State and the Tribe continue to collaborate on these cases through monthly zoom calls. This and other relationship-building efforts have resulted in increased kinship placements and fewer terminations of parental rights. 

Questions to consider:

• In what ways does your agency share power with families and communities by meeting them where they are? 
• How could community leaders and representatives have a greater voice in your agency’s services and decision-making (for example, by ensuring they are included in all family group conferences)? 
• How can your agency embrace and incorporate tribal culture and Native practices in its engagement with Native families both inside and outside the courtroom? 
• How can your agency incorporate culturally sensitive practices for any family it works with? 

1 Content of this brief was informed by consultation with members of the Knowledge Management Lived Experience Advisory Team on Oct. 5 and 21, 2021. This team includes youth, parents, kinship caregivers, and foster parents with lived experience of the child welfare system who serve as strategic partners with Family Voices United, a collaboration between FosterClub, Generations United, the Children’s Trust Fund Alliance, and Casey Family Programs. Members who contributed to this brief include Dee Bonnick, Sonya Begay, Aleks Talsky, Gloria Torma, and Jeremiah Donier.
2 Content of this brief was informed by interviews with Judge Kathleen Quigley, Pima County, Ariz., on Aug. 17, 2021; District Judge Katherine R. Delgado, Adams County, Colo., on Aug. 17, 2021; Judge Sally Tarnowski, St. Louis County, Minn., on Aug. 10, 2021; Sheldon Spotted Elk, National Council of Juvenile and Family Court Judges, on July 9, 2021; Shana King, ICWA Law Center, on July 13, 2021; Angela Cuellar and Peter Pace, Adams County (Colo.) Children and Family Services, on Sept. 7, 2021.
3 Saniguz Ullrich, J. (2019). For the love of our children: an Indigenous connectedness framework. AlterNative, 15(2), 121-130.
4 In determining whether active efforts have been met, the courts have discretion to consider the facts and circumstances.
5 source

The Supreme Court honored tribal nations with their decision

Indian welfare act

read a web version on a government site here

Passed House amended (10/14/1978)

(Measure passed House, amended, in lieu of H.R. 12533)

Indian Child Welfare Act – =Title I: Child Custody Proceedings= – Declares that it is the policy of Congress to establish minimum Federal standards for the removal of Indian children from their families (extended families) and for the placement of such children in foster or adoptive homes which will reflect Indian culture.

Grants an Indian tribe jurisdiction exclusive as to any State over custody proceedings involving an Indian child who resides within the reservation of such tribe or is a ward of a tribal court except where jurisdiction is vested in the State by existing Federal law.

Allows the Indian tribe of a child to intervene at any point in a State Court proceeding for the foster care placement of, or termination of parental rights to, an Indian child.

Stipulates that, upon application by an Indian individual who has reached age 18 and who was the subject of an adoptive placement, the court which entered the final placement decree shall inform such individual of the tribal affiliation, if any, of his or her biological parents, and provide such other information as may be necessary to protect any rights flowing from his or her tribal relationship.

Allows any Indian tribe which became subject to State jurisdiction pursuant to Federal law to reassume jurisdiction over child custody proceedings upon approval of a petition by the Secretary of the Interior.

Provides for emergency removal of an Indian child, who is a resident of or domiciled on a reservation but temporarily located off the reservation, from the parent or Indian custodian and the emergency placement of such child under applicable State law, in order to prevent harm to such child. Stipulates that such removal or placement must be terminated immediately when no longer necessary to prevent imminent physical harm to such child.

=Title II: Indian Child and Family Programs= – Authorizes the Secretary of the Interior to make grants to Indian tribes and organizations for the establishment and operation of Indian child and family service programs on or near reservations and for the preparation and implementation of child welfare codes. States that the objective of every Indian child and family service programs shall be to prevent the breakup of Indian families.

Authorizes every Indian tribe to operate and maintain facilities for: (1) the counseling or treatment of Indian families or individuals; (2) the temporary custody of Indian children; and (3) legal representation and advice to Indian families involved in tribal, State, or Federal child custody proceedings.

Authorizes the Secretary to make grants to Indian organizations to establish and operate off-reservation Indian child and family service programs.

=Title III: Recordkeeping, Information Availability, and Timetables= – Directs the Secretary to collect and maintain records of all Indian child placements which are affected under the date of this Act. Requires the Secretary to insure that the confidentiality of such information be maintained where the court records contain an affidavit that the identity of the biological parents remain confidential.

Directs the Secretary to promulgate, within 180 days of enactment of this Act, such rules and regulations as may be necessary to carry out the provisions of this Act.

=Title IV: Miscellaneous= – Directs the Secretary to prepare, in consultation with appropriate agencies in the Department of Health, Education, and Welfare, a report on the feasibility of providing Indian children with schools located near their homes, and to submit such report to the Senate Select Committee on Indian Affairs and House Committee on Interior and Insular Affairs. source

tHANKS for readings

Indian Child Court Forms

The Court of Appeal reversed the judgment of the juvenile court denying Father’s request for an evidentiary hearing on his petition filed under Cal. Welf. & Inst. Code 388 to reinstate reunification services with Minor, holding that, under the circumstances, it was error to deny Father’s request for an evidentiary hearing on his section 388 petition.

A few days after Minor’s birth, the Alameda County Social Services Agency filed a petition on his behalf under Cal. Welf. & Inst. Code 300. The juvenile court terminated the reunification services of Father, who had been incarcerated since before Minor was born, and set a Cal. Well. & Inst. Code 366.26 hearing. The day before the hearing, Father filed his section 388 petition, stating that he had not been provided with services despite the court’s orders. The court denied the petition without holding an evidentiary hearing. The Court of Appeal reversed, holding that the juvenile court erred in denying Father’s request for an evidentiary hearing on his section 388 petition.

PRIMARY HOLDING

The Court of Appeals reversed the judgment of the juvenile court denying Father his request for an evidentiary hearing on his petition filed under Cal. Welf. & Inst. Code 388 to reinstate reunification services with Minor, holding that, under the circumstances, it was error to deny Father’s request for an evidentiary hearing on his section 388 petition. source

Filing a Welfare & Instructions Code Section 388 Petition In Juvenile Dependency Court

A 388 petition is typically brought to request a hearing to modify, change, or set aside a previous court order, or to terminate juvenile court jurisdiction, on the ground that there are changed circumstances or new evidence. Any change or modification of a previous order may be sought by a 388 petition. From the commencement of the juvenile dependency case to its completion, parents and other interested persons have the continuing ability to petition the court under this section. Even after reunification services are terminated, a 388 petition permits parents to force the court to consider the reunification issue with the additional new information. A petition under section 388 of the Welfare and Institutions Code may also be brought to assert a relationship as a sibling related by blood, adoption, or affinity through a common legal or biological parent to a dependent child or a child who is the subject of a dependency petition, and to request visitation, placement with or near that child, or consideration when determining or implementing the child’s case or permanent plan, or to request any other order that is in that child’s best interests. Documentation should be submitted with a §388 petition as an “offer of proof,” to meet the requirement of a prima facie showing necessary to trigger a hearing. A prima facie showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. Usually, a party attaches documents which indicate to the court that, were the motion to be granted, the petitioner would be offering in evidence of live testimony along with the attached documentation. The attachments indicate the availability of admissible evidence to support the allegation of changed circumstances. To be entitled to a hearing on his petition, the petitioner only has to make a showing of probable cause; he is not required to establish a probability of prevailing on the petition. The 388 Petition should elaborate on the substantial change in circumstance or the new evidence. For example changing conditions in the family unit or the child’s life, will demonstrate to the court the need for the new court order. The petition should also address how the new court order will be in the children’s best interest. In evaluating whether the proposed modification is in the best interest of the child, the juvenile court will look at the following factors: (1) the seriousness of the problem which led to the dependency and the reason for any continuation of that problem; (2) the strength of the relative bonds between the child and her parents and caretakers, and (3) the degree to which the problem which led to the dependency may be easily removed or ameliorated, and the degree to which it actually has been. A 388 petition is a useful tool at all stages of the juvenile dependency case. source

This is not legal advice. You may want to consult a lawyer about this question.

In family law appeals, it is important that your appellate attorney knows more than appellate law: they must also know family law.  Attorney Andrew J. Botros of Bickford Blado & Botros is an experienced appellate attorney and a Certified Family Law Specialist, certified by the State Bar of California’s Board of Legal Specialization. He has ably and successfully represented clients in family law appeals. His published appellate cases include Lief v. Superior Court (2018) 30 Cal.App.5th 868, In re Marriage of Kent (2019) 35 Cal.App.5th 487, and Menezes v. McDaniel (2019) 44 Cal.App.5th 340.

Some family law litigants (and even some attorneys) may think an appeal is just a “do-over” of what happened at the trial level. However, trials and appeals are two very different proceedings

Trial courts ask: “What are the Facts?”

It is not unheard of for a family law trial to last several days, or even several weeks. However, the oral argument on an appeal of a week-long trial will almost never exceed 30 minutes and usually doesn’t impact a case. So, why is that?

The reason why a trial can last so long is because the parties are offering their different versions of the facts. The parties are usually examined by both sides, other witnesses (sometimes expert witnesses with a lot to say) are also examined, and exhibits are introduced into evidence. In most cases, the witness’ credibility is a critical issue for the Court.  Accordingly, a lot of time and effort is devoted to either bolstering or attacking the credibility of witnesses. At the end of a case, the trial judge has to determine what laws to apply and how to apply them, but he or she must also determine what happened and who was telling the truth.

Appeals court: How does the law apply to the facts determined by the Trial Court?

On appeal, the factual findings made by the trial judge are given extraordinary deference and are extremely difficult to challenge. For instance, the determination of credibility is the exclusive province of the trial court. For example, consider the following: a trial court believed a raging murderer’s testimony that he saw the Pope steal candy from a candy store. 100 religious clerics from every denomination testified they were watching him the whole time and that there was no theft. Believe it or not, if the trial judge finds the murderer’s testimony more credible, that factual finding that the Pope stole the candy cannot be disturbed on appeal.

Basically, as long as any evidence in the record would support the Court’s finding, the factual findings won’t be disturbed on appeal. Unlike at trial, the Court of Appeal does not take witness testimony, and (except for extremely limited exceptions) it doesn’t review or admit new exhibits. As such, most of the litigation during an appeal occurs in the written appellate briefs. In fact, by the time the lawyers walk into the Court of Appeal to argue their cases, the judge’s already have a tentative opinion drafted.

What’s exactly is a Writ?

So when do you file a writ and when do you file an appeal?

First, let us address the practical differences between an appeal and a writ. Think of appeals as non-emergency cases and writs as emergency cases. Appeals can take a long time because the appellate courts are so busy. In California a party can reasonably expect the appellate court to rule on the appeal in about one year from the date the notice of appeal is filed. Also, in California, the judges are required to issue a written opinion in every case explaining their reasoning for either affirming or reversing the judgment. This is one reason why appeals take so long.

Writs allow a party, for lack of a better term, to “cut in line.” You can get a decision from the appeals court in as little as a few hours if the situation requires it. Writ relief is one hundred percent discretionary and, unlike in appeals, the Court of Appeals won’t explain its reasoning for denying relief it doesn’t want to.

The most prominent question (but not the only question) in determining whether an appeal or a writ request should be filed is determining if the order made by the trial judge is considered “final.” Final orders are described in Code of Civil Procedure section 904 through 904.5 Here are example of family law orders that are final:

• Any judgment where issues are not bifurcated (bifurcated judgments have their own complicated appellate procedures to determine if they are final).
• Any child support order, regardless if it is made before or after trial.
• Any spousal support order, regardless if it is made before or after trial.
• An order on a post-judgment RFO that requires no further action by the trial court.
• Domestic Violence Restraining Orders.
• A need and ability based attorney fee award made before or after a trial.

Final orders need to proceed by appeal absent extraordinary circumstances that make appellate relief impractical. A good example of a situation requiring writ relief in a final order was in Alan S. v. Superior Court. In that case, an attorney fee award was being challenged and if it wasn’t resolved immediately, the losing party could not retain their attorney and it would thus gravely affect the rest of the case. The losing party could not wait for an appeal, thus emergency writ relief was appropriate.

What family law orders must proceed by writ relief?

Here is a list of the most common orders that must proceed by writ:

• A prejudgment order on child custody or visitation made either ex parte, or at a Request for Order hearing.
• An order for exclusive use and possession made before judgment.
• Hearings on discovery motions.
• A hearing denying a continuance.
• An order denying a motion to quash a case for lack of personal jurisdiction.

Appellate litigation can be difficult and complex and it is vitally important that you understand your rights. That is why it is essential that you contact a qualified family law attorney who handles writs and appeals to discuss your case. source

Can a family court decision be appealed?

California family court appeals

It is part of the complex nature of family law that family courts don’t always reach the conclusions that the participants seek. There are times when a losing party in a divorce or custody trial will have to accept the results of the case, whether they like it or not. There are other times, however, when they can question the decision and launch an appeal with the help of a California family court appeals lawyer. California law allows the appeal of most family court matters, and an unjust ruling can certainly be overturned.

Appealing an unfavorable decision in California

If you have endured the emotional and financial costs of a family law trial only to find that the court rules against you, even though you believe you had a strong case, you still have options. You can appeal the decision and continue to press your case. In answering the following three common questions, we will provide you with the essential information you need to launch a successful appeal.

How do you appeal a California Family Court decision?

You begin your appeal by filing a Notice of Appeal, which lets the court and the other parties know that you intend to challenge the initial ruling. The notice can be filed as soon as the order or judgment from the original case is signed by the judge and stamped “Filed.” Once this paperwork, known as the entry of judgment, has been completed your legal team can immediately file the Notice of Appeal.

The paperwork is the easy part, however. In order to launch an appeal, you must have a strong legal basis for it (i.e., you must show that the law was misapplied to your case or that factual errors misdirected the judgment). You must also base your appeal on issues you have already raised in court during the initial trial. You can’t raise matters in the appeals court that have not already been contested in the trial court.

How long do custody appeals take?

The appeals process can be time consuming. You have 60-180 days from the date the judgment is handed down to file your appeal. The appeals court can then either hear your verbal argument or they can reach a decision on the basis of briefs received from yourself and the other party. Either way, the court date is typically several weeks after your filing. After that, it may take several months before you get a final decision.

What is the average cost of an appeal?

There is no one predictable cost for an appeal. It will depend on your lawyer’s rates, the complexity of the case, and the size of the record. Some cases may end up totaling $10,000. Your specific circumstances would have to be considered to estimate costs.

Working with the courts of appeals 

When your case goes from a trial court to an appellate court the processes, handling, and application are significantly different from the original trial, and your expectations should be too.

Is the appellate court’s decision a final?

The decision that the appellate court reaches after considering your appeal will become final 30 days after the court hands down its judgment. Within those 30 days, you can still object and submit a petition against the ruling. If none of the parties involved in the case submits a petition within that 30-day window, the decision is final and can no longer be appealed.

Will the court of appeals accept the case?

Appellate courts are quite limited in terms of what appeals they can and can’t consider. An appellate does not so much act as a provider of a ”second opinion” in your case, but instead considers the legal process by which the trial court reached the decision. Therefore, in order for the appeals court to review your case, you must be able to show that California law was misapplied, that there was too little evidence to support the ruling, or that the trial court somehow abused its discretion.

What can the court of appeals do?

Appeals courts each consist of a panel of three justices, who review decisions made by trial courts to determine whether they were reached in accordance with a proper application of the law. An appeals court does not conduct a new trial but instead reviews the record in the court case to see if there were any legal or factual errors that led to the outcome. The justices of the appeals court can either uphold the decision made by the trial court judge, or remand the case, thus sending it back to the trial court.

The process to appeal a family law court order

The process of appealing a California family court order is relatively simple, which isn’t to say that it is easy or quick. If you feel you have good reason to appeal a trial court decision, you and your legal counsel must first file your Notice of Appeal. After that, the procedure rolls out over the course of a few months.

More information on how we approach appeals

An important question to ask yourself before appealing a California family court decision is whether you should even bother to do so in the first place. You and your legal support must weigh the costs involved and the strength of your appeal in terms of evidence showing legal errors or abuse of discretion. Your family lawyer may well advise you not to appeal as it isn’t always worth the trouble and expense. If the case is strong enough, then the key to lodging the appeal is in the Notice of Appeal itself.

Deadline to file the Notice of Appeal

The notice must be filed in a timely manner. The deadlines are strictly enforced because they are jurisdictional. If you fail to file your appeal in time, the court will not have jurisdiction to consider your appeal.

Contents of the Notice of Appeal

The Notice of Appeal itself is a short form that is easily and quickly filled in without any major preparations needed. It contains the name, state bar number and contact details of the lawyer, the names of the plaintiff and respondent, and indicates what type of judgment is being appealed. The real work is in the brief that is presented to the justices for deliberation. This document must contain the necessary evidence of the errors made in the California family court ruling, presented in a clear, concise and convincing manner.

Why family law appeals are so infrequent 

The important thing to remember about appealing a family court decision is that it is a last resort to be considered only if the family court case shows clear signs of error or misapplication of the law. What you really want to do is get your case right in the family court in the first place. Family law appeals are rare for a number of reasons. They are seldom successful as it is difficult to establish meritorious legal grounds for appealing. They involve considerable costs, not only for the appeal but for a retrial if the case is remanded to the California family court. Simply put, if you are going to appeal, you had better have excellent reasons. You must also have the financial and emotional wherewithal to pursue the appeal and the possible retrial and be convinced that the eventual gains of a successful appeal outweigh the costs.

Time limit for filing an Appeal

For a family law case in California, you have between 60 and 180 days to file your appeal (60 days after receiving notification that judgment has been filed in your case, or 180 days after the entry of judgment). This time limit is strict and non-negotiable. If you miss the deadline, you miss your chance to appeal, which is another reason why many people do not appeal family court cases.

Grounds for Filing an Appeal

If you do not have strong grounds for your appeal and your legal counsel cannot present this evidence clearly and convincingly, there is no point filing for an appeal. The grounds for an appeal are very specific: you must be able to prove that legal errors were made in your case and that these errors – not the particulars of your case – resulted in an adverse judgment against you.

How to file the Notice of Appeal 

As we’ve already mentioned, filing the Notice of Appeal is a relatively easy part of the appeals process, requiring the following four steps:

1. Prepare the Notice of Appeal

Your lawyer will prepare the Notice of Appeal and all supporting paperwork.

2. Make at least two copies of your Notice of Appeal

The original Notice is filed with the court. Before filing, two copies are made, with one being for you and the other being served to the opposing party.

3. Serve your Notice of Appeal on the other side

One copy is then served to the opposing party, either in person or by mail. Proof of service must be obtained to show that the other party has received the notification.

4. File your Notice of Appeal and Proof of Service with the court clerk

Before your appeal deadline, your lawyer will hand the original notice and the proof of service, together with the filing fee, to the court clerk.   

After you file your Notice of Appeal

Once you have filed your Notice of Appeal, the real work starts. You and your lawyer need to prepare your case and write a strong brief for the appellate court justices. Here are some matters to consider as you are preparing – or even before you file.

Know the child custody laws about appeal eligibility in your state

If your family court case involves child custody law, make sure to consult your state’s statutes for more information about the specific rules.

Types of child custody orders that cannot be appealed 

There are some child custody orders that are not eligible for appeal. For example, some courts may issue temporary or non-final orders (also called interlocutory orders). In this case, the parent who wishes to make an appeal must wait until the court has issued its final ruling. Only then can you appeal.

How parents can appeal a child custody order

Once the order is final, you can then file the appeal. Your lawyer will compile a brief explaining the reasons for your appeal. The court will then consider the brief, as well as transcripts of the original hearing, and decide whether to uphold or overturn the decision.

Limitations in overturning a child custody order

In an appeal, you are not permitted to present new evidence that was not presented in the original hearing. The appellate court considers the same evidence used in the original California family court case. The higher court will base its decision on the same principles used by the lower court.

Why you need an lawyer with appellate experience

The appeals process is a specialized one with a very order-specific set of practices and expectations. In order to navigate it effectively, you need the help of a lawyer who has experience with it. The right person for the job may not be the same lawyer who worked on your case originally. Look for an attorney who has successfully brought cases to the appellate courts.

How to find a family lawyer

When searching for a good family lawyer, remember that you don’t only want someone with high levels of expertise in their field, but also someone you can work with personally. You are dealing with personal matters that are very close to your heart. Make sure you find someone who understands and respects that and with whom you see eye to eye.

How to choose a family lawyer

Aside from the usual Google searches for lawyers in your area, ask friends and family for recommendations. This kind of word-of-mouth recommendation is often the best way to find an attorney that you connect with as well as one who can handle the legal and technical aspects of your particular case.

What do judges look for in child custody cases?

The guiding principle for a judge in a child custody case is the best interests of the child. The court will always focus on the child’s needs, not those of either of the parents. They will consider questions such as:

• Where will the child be safest?
• Where will the child receive their basic needs such as food and clothing?
• Will the child receive proper supervision?
• Will the child be emotionally supported?
• Which parent has been the primary caregiver up to this point?
• Is there abuse involved? If so, what are the best steps to remove the child from the abusive environment?

source

Grandparents’ and Nonparents’ Rights to Custody and Visitation

There are specific requirements which must be met in requesting custody that differ from those in requesting visitation.  Further, there are limitations as to whether a pending case in which custody of the child is or may be at issue must exist as opposed to filing an independent action for custody or visitation.  In simplest terms, the bar is higher for requesting custody than for requesting visitation.

Petitioning for custody generally requires a pending action in which custody of a minor child(ren) is or may be at issue. Grandparents and other nonparents may petition for joinder in the same lawsuit and be awarded custody of the child under certain circumstances.  However, where no case exists in which custody of the minor child is or may be an issue, generally neither a grandparent nor other nonparent may petition for custody by filing an independent action.  (The alternative is to petition the probate court for a guardianship – unless the juvenile court has jurisdiction of the child – where there is a basis for a guardianship.)

Likewise, grandparents and other nonparents may be awarded reasonable visitation in a pending family-court proceeding in which custody of the minor child is or may be an issue.  But generally only a grandparent can petition in an independent action for visitation.  A stepparent who is a party to the proceeding may be granted visitation if the visitation does not conflict with the custody or visitation rights of a birth parent who is not a party to the proceeding.  (Family Code sec. 3101.) 

Other nonparents normally cannot petition for visitation independently unless there is a statutory exception, such as one of the parents is deceased and the nonparent is one of the relatives specified in Family Code section 3102(a) (i.e., a deceased parent’s child(ren), sibling(s), or grandparent(s)).  Note that Family Code section 3102 does not apply if the minor child has been adopted by a person other than a stepparent or grandparent.  (Family Code sec. 3102(c).)

The judicial officer must join to the proceeding any person who the judicial officer discovers has physical custody of the minor child or who claims custody of or visitation rights with respect to a minor child of the marriage or domestic partnership, or to any minor child of the relationship.   (Cal.R.Ct. 5.24(e)(1).)  Joinder is not mandatory but discretionary if the judicial officer finds that it would be appropriate to determine the particular issue in the proceeding and that the person to be joined is either indispensable for the judicial officer to make an order about that issue or is necessary to the enforcement of any judgment rendered on that issue.  (Cal. Rule of Court 5.24(e)(2).)

The mechanics of joinder in a pending family court action are beyond the scope of this discussion. Joining a third party or a third-party request for joinder should be undertaken with the help of an attorney or the family law facilitator.

Grandparent and Other Nonparent Custody

Certain persons have preference when a judicial officer orders custody.   Family Code section 3040(a) gives preference as follows:  to the parents jointly; to one of the parents; if to neither parent , then to the person or persons in whose home the child has been living in a wholesome and stable environment; and, to any person or persons deemed by the judicial officer to be suitable and able to provide adequate and proper care and guidance for the child.

Grandparents and nonparents may gain custody of a minor child. There are two ways under this statute for a nonparent such as a grandparent to gain custody:  1)  if a nonparent can prove by clear and convincing evidence (see Rebuttable Presumptions and Standards of Proof) that custody to a parent would be detrimental to the child and custody to a nonparent is necessary to serve the best interests of the child; and, 2) if a nonparent can show by a preponderance of the evidence that the nonparty has taken care of the minor child’s emotional and physical needs as a parent on a daily basis for a substantial period of time and removing the child from that stable environment would harm the child, then the nonparty may be granted custody of the child, unless a parent can show by a preponderance of the evidence that custody to the parent would be in the best interest of the child.

According to Family Code section 3041:

A nonparent may petition the Superior Court for custody of a minor child.  However, if a parent objects to that nonparent having custody, the Court must determine 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 minor child.  (Family Code section 3041(a).)

The standard of proof in the determination that a parent’s custody would be detrimental to the child is by clear and convincing evidence.  (Family Code section 3041(b).) 

The phrase “‘detrimental 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.”  (Family Code section 3041(c).)  

Even if clear and convincing evidence does not exist that parental custody is “detrimental to the child,” if the Court finds by a preponderance of the evidence that a nonparent meets the requirements of Family Code section 3041(c), then the finding must be construed as being in the best interest of the child and that parental custody would be detrimental to the child unless a parent can show the contrary by a preponderance of the evidence. (Family Code section 3041(d).)  

Grandparent and Other Nonparent Visitation

As mentioned above, grandparental visitation request can be made in a section 3102 proceeding (when there is a deceased parent).  It can also be requested under either Family Code sections 3103 or 3104, depending on the circumstances.

Grandparental visitation also can be requested under Family Code section 3103 when a parent is already a party to a Superior Court proceeding identified in Family Code section 3021 (i.e.,, a petition for exclusive custody, paternity, divorce, legal separation, nullity of marriage, or under the Domestic Violence Prevention Act, or by complaint filed by the Department of Child Support Services to determine custody and visitation).   In a section 3103 proceeding, grandparental visitation may be ordered if such visitation is in the best interest of the minor child.  However, if the parents agree that such visitation is not in the best interest of the minor child, the grandparent must prove by a preponderance of the evidence that the visitation would be in the child’s best interest.

A grandparent can bring an independent action for visitation in a section 3104 proceeding, if a parent is not a party to a proceeding identified at Family Code section 3021 and the parents are not married.  Or, if the parents are married, then a grandparent can bring an independent action for visitation if one or more of the following circumstances exist:

1. the natural or adoptive parents are separated and living apart on a permanent or indefinite basis;
2. one of the parents has been absent for more than a month without the other parent knowing the whereabouts of the absent parent;
3. one of the parents joins in the petition;
4. the child is not residing with either parent; or,
5. the child has been adopted by a stepparent.

If the grandparent is able to petition independently for visitation in a section 3104 proceeding, visitation may be awarded if the judicial officer:

1. determines there is a preexisting relationship between the grandparent and his or her grandchild producing a bond that would make visitation in the best interest of the child; and,
2. balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.

However, if the natural or adoptive parents agree visitation should not be granted, or a parent awarded sole legal and physical custody in some other proceeding objects, or if no order exists and a parent with whom the child resides objects, then the grandparent must prove by a preponderance of the evidence that the visitation is in the best interest of the minor child.

Generally, a nonparent (other than a grandparent or specific persons related to a deceased parent) may not bring an independent action for visitation.  (White v. Jacobs (1988).)   A request for such nonparent visitation must be made in the course of a proceeding in which custody otherwise is or may be at issue.  (Perry v. Super. Ct. (1980).)   Such nonparent visitation may be ordered only when there is clear and convincing evidence that denial of nonparent visitation would be detrimental to the child.  (Marriage of Gayden (1991).)

Grandparents’ Duty to Pay Child Support Different from Parents’ Duty to Pay Child Support

Under Family Code section 3930, a grandparent has no duty to support his or her grandchild regardless of who has custody of the child. However, a grandparent who is a party to a custody or visitation proceeding can be ordered to pay for a child’s court-appointed counsel, for another party’s attorney’s fees to defend on any issues involving the grandparent, and for costs related to visitation, but not for counseling costs for a grandchild. (Marriage of Perry (1998).) If the grandparent has custody, then the parents will generally pay support individually to the grandparent (if the grandparent requests it) according the California uniform guideline amount (or according to any mutually-agreed-upon amount if several conditions are met).  A grandparent cannot be ordered to pay California uniform guideline child support.

Under Family Code sections 3103(g)(2) and 3104(i)(2), the duty of a grandparent who has been awarded visitation to pay child support is different from that of the parents.  If a grandparent has been awarded visitation, the judicial officer may order the grandparent to pay for transportation costs, necessary expenses such as medical expenses, day-care costs, and other necessities, for the purpose of the visitation. The judicial officer may also allocate these costs between the parent(s) and the grandparent(s).

Attorney Fees

Under Family Code section 2030, in a divorce, annulment or legal-separation proceeding, any party (except a governmental entity) may be ordered to pay attorney fees to another party when reasonably necessary to provide financial parity between the parties.  However, grandparents and other nonparents paying attorney fees and costs are limited to an amount reasonably necessary to assert or defend the issues related to that party, not the entire proceeding. (Marriage of Perry (1998) 61 Cal.App.4th 295, 310.)

Financial parity takes into account the following factors:  the respective incomes and needs of the parties; and any factors affecting the parties’ respective abilities to pay. source

GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

Child’s Best Interest in Custody Cases

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Grandparents Rights to Grandchildren

Grandparent Visitation Rights (California Family Code 3102)

Are you a grandparent seeking a court ordered visitation with your grandchild? If you are, then it is important that you speak with a Wallin & Klarich  California family law attorney who can evaluate your case and advise you of your legal rights as a grandparent. In California, under Family Code section 3100, the family court may grant reasonable visitation rights to the grandparent of a minor child. The court may grant you reasonable grandparent visitation rights if either parent of a minor child is deceased. Even if neither parent of the minor child is deceased, the court may still grant you visitation rights. In order for the California family law court to grant you reasonable grandparent visitation rights with your grandchild, the court must find that there is a preexisting relationship between you and your grandchild. The court will balance the best interest of your grandchild when determining whether to grant your grandparent visitation request. Also, normally a grandparent cannot request visitation rights with his or her grandchild if the grandchild’s parents are married. However, there are exceptions to this general rule. It is important to note that if you are granted grandparent visitation by the California family law court and the circumstances change where none of the above listed exceptions apply, either parent of your grandchild can request that the court terminate the grandparent visitation order. If the parents request that the grandparent visitation order be terminated, the court must grant the parent’s request and end all of your visitation rights that had been given to you.

How to Ask for Grandparent Visitation in California

In California, the family law court will not automatically give a grandparent any visitation rights with his or her grandchild. In order to obtain grandparent visitation rights, you must first file a petition requesting grandparent visitation rights with the court. If a family law case between your grandchild’s parents has already been filed, such as a divorce or paternity case, you may join that case and ask for grandparent visitation rights. However, if a family law case has not been opened, then you must file a petition requesting grandparent visitation rights and open a case with the family court—in essence, you are starting a new case from the very beginning. Please note that unlike a divorce or paternity case, there is no official court form to petition the court for grandparent visitation. However, some counties provide a local court form that can be used as the petition. But if you happen to live in a county that does not provide a local court form, it is important that you hire an experienced family law lawyer to represent you and draft your petition for grandparent visitation.

Grandparent Visitation Resources:

• Advocates for Grandparent Grandchild Connection
• Resources for Grandparents from the AARP
• grandparentchildconnect.org

History of  Grandparent Visitation Rights in California

Historically in California, grandparent visitation has not always been permitted. In recent years, however, family dynamics have changed considerably.  Today households consist of family members of multiple generations. Often grandparents and non-parents are raising, supporting, or caring for children in the family. With the changing landscape, California law has evolved to address California custody and visitation disputes as they pertain to the rights of grandparents.

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. See Family Law Code section 3103.

The key focus in all court decisions involving children is “what is in the best interest of the child?” California Family Law Code Section 3102 allows relatives (including grandparents) visitation over the objection of the surviving parent. If a parent has died, the court will consider both a deceased parent’s wishes and the surviving parent’s decision in approving or denying grandparent’s visitation rights. California law further confirms that grandparents do not lose their rights even when a stepparent adopts their grandchild.

California Family Code Section 3102 is relevant in the common situation where the parents of a deceased parent seek to have visitation rights as to the deceased parent’s child, over the objection of the surviving parent. The visitation rights that the grandparents seek are known as Grandparent Visitation. California Family Code Section 3102 currently allows relative (including grandparent) visitation over the objection of the surviving parent under certain circumstances. The California Supreme Court held that visitation of this nature is proper so long as in awarding visitation, the trial court gives special weight to the surviving parent’s decision in regard to supporting, or not supporting, a child’s relationship with relatives of a deceased parent, while keeping in mind what is in the child’s best interest. (See Hoag v. Diedjomahor (2011) DJDAR 15328) Historically, grandparent visitation did not always seem to be allowed.

Case History of Grandparent Visitation

On its face, Family Code section 3102 allows for a grandparent to have visitation with his or her grandchild where one parent is deceased. The practical application of this statute has been greatly curtailed by the United States Supreme Court case, Troxel v. Granville and its progeny. (Troxel v. Granville (2000) 530 U.S. 57.) As noted below, in cases where the surviving parent is not unfit and offers the grandparent meaningful visitation, the Courts are restricted under the Federal Constitution from entering any visitation order in favor of the grandparent in any fashion whatsoever.

The landmark U.S. Supreme Court case of Troxel v. Granville (2000) 530 U.S. 57  The Courts presume that a parent is the best person to recognize a child’s physical and emotional needs and make choices that serve the child’s best interests. Yet, not all parents are able to recognize and meet a child’s needs. In those cases, a grandparent may want to intervene.

Some form of grandparent rights are recognized in every state. However, there isn’t any federal law regulating grandparent visitation. What this means is that each state has some nuances in its rules governing grandparent rights. The closest thing to a federal grandparent visitation law comes out of the U.S. Supreme Court case Troxel v. Granville. In Troxel, the Supreme Court upheld the constitutionality of a broad grandparent visitation law out of Washington. Although the Washington law was upheld, the Troxel case required a parent’s preferences to be considered before awarding grandparent visitation. Also, under Troxel, grandparent visitation shouldn’t interfere with a parent’s basic rights. Some exceptions apply to the above rules if parents are deemed unfit.

Yes, grandparents can have visitation rights if the court determines that there was a pre-existing relationship between the grandparent and the child that has “engendered a bond,” and that it is in “the best interest of the child” to have a relationship with the grandparent. In plain English, that means that a judge, after hearing the evidence, determines that it is in the best interest of the child to continue to see his or her grandparents. The visitation, of course, has to be reasonable, and the parent(s) still retain the right to make decisions about their child.

As this process can be painful for all concerned, it may be in everyone’s best interest to try to resolve these issues out of court. Mediation between all parties is a good way to discuss the emotional needs and concerns of everyone involved and to work out a mutually agreeable solution. An experienced family law attorney can help you find a mediator that specializes in grandparent-grandchildren issues.

In Troxel, the United States Supreme Court granted review and affirmed the Washington Supreme Court’s decision. The United States Supreme Court found that since the Mother was a fit parent and that Mother “did not oppose visitation, but instead asked that the duration of any visitation order be shorter,” any visitation order would have been an “unconstitutional infringement on [Mother’s] fundamental right to make decisions concerning the care, custody, and control of her [children.]” (Troxel v. Granville, supra, 530 U.S at 71.) The United States Supreme Court did not remand the case for further proceedings and found that since the visitation order violated the constitution, there were no grounds to an enter a visitation order of any kind.  source

Family Code Section 3102 unconstitutional. Relevant California decisions that followed seemed to confirm Family Code section 3102’s unconstitutionality.

In Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242, the California Supreme Court disallowed a trial court order granting visitation to the minor child’s paternal grandparents. The trial court had erroneously dismissed the surviving parent’s concerns about visitation relating to the grandparents’ drinking, swearing, uncleanliness, and the child’s “uneasiness” after visits. The California Supreme Court further confirmed that the surviving parent’s concerns regarding visitation had to be accorded special weight.

In Punsly v. Ho (2001) 87 Cal.App.4th 1099, the California Supreme Court disallowed another trial court order granting visitation to a minor’s paternal grandparents. In this case, the California Supreme Court held that the trial court had erroneously failed to apply a presumption (or assumption) that the surviving parent’s visitation decisions were in the child’s best interest. The trial court was further said to have erroneously dismissed the surviving parent’s concerns about visitation. Punsly discussed the matter of when the surviving parent is to offer the grandparents a visitation opportunity. The grandparents argued that Troxel did not apply since the surviving parent did not offer them a visitation schedule until they had retained counsel. The Punsly court disagreed, noting that the proposal of a visitation plan by the surviving parent was voluntary. The court also noted that what is important for the purposes of awarding grandparent visitation is that the surviving parent offered a visitation plan at all, not the motivation or timing behind this offer. In Punsly v. Ho, the Court reversed the trial court’s decision to order visitation because of the surviving Mother’s “fitness as a parent and her willingness to voluntarily schedule visitation.” (Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1111.) As in Troxel, the appeals court did not remand for further proceedings, but directed the trial court to vacate its order of visitation and enter a new order denying the visitation request altogether. There were no grounds to enter a visitation order of any kind.

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848 is another grandparent visitation case. There the surviving parent’s fitness as a parent had been confirmed. He simply did not want a court-imposed visitation schedule. The California Supreme Court held that the application of Family Code section 3102 to establish a visitation schedule over the surviving parent’s objection violated his fundamental parenting right to make decisions about the care, custody, and control of his daughter. The court came to this conclusion because the surviving parent was fit, had not sought to cut off grandparent visitation completely, and there was no strong evidence against the presumption to favor a fit parent’s parenting decisions.  In Kyle O. v. Donald R., the Court held that “a fit parent…who agreed to allow visitation, had the fundamental right as a parent to prefer flexible unscheduled visitation.” (Kyle O. v. Donald R (2000) 85 Cal.App.4th 848, 863-864.) When the trial court imposed a schedule over the objection of father, the appeals court held that application of Family Code section 3102 “unduly infringed upon [Father’s] fundamental parenting right to make decisions about the care, custody and control of his daughter.” (Id. at 864.) As in Troxel and Punsly v. Ho, the trial court was directed to vacate its order of visitation and enter a new order denying the visitation request altogether. There were no grounds to enter a visitation order of any kind.

In IanJ. v. Peter M., the Court of Appeals held that “requiring unsupervised visitation [over the objection of the surviving parent] unlawfully intrudes on [the surviving parent’s] right to make decisions with respect to [the children’s] well-being…” The Court held that “the grandparents…were required to show clear and convincing evidence that…unsupervised visitation…was in the child’s best interests.” The Court found that since the surviving parent’s concerns about the grandparents were legitimate, the surviving parent’s insistence on supervised visitation had to be respected. Often, we deal with cases where both parents are alive and only one parent objects to grandparent visitation. The law in Troxel doesn’t apply in these types of situation because one surviving parent wants the visitation. This usually results in the grandparents joining the case and receiving some sort of visitation if the court deems it in the best interests of the child.

Grandparent visitation can be quite complicated. If you have questions about grandparent visitation in California, contact our firm and we can help you. source

Historical Lessons Regarding Grandparent Visitation

The lesson of these constitutional decisions is two-fold. First, Family Code Section 3102 is generally valid, but is unconstitutional (invalid) as applied to circumstances similar to those present in each of the above-mentioned cases. Second, as noted in Hoag, grandparent visitation is valid so long as the trial court awards it by giving special weight to a parent’s decision in regard to supporting, or not supporting, a child’s relationship with relatives of a deceased parent, while keeping in mind what is in the child’s best interest.

The California Family Code on Grandparent Visitation

The general provision allowing a grandparent visitation with his or her grandchild can be found under California Family Code section 3100. This section states that the court, in its discretion, may grant reasonable visitation rights to another person having an interest in the welfare of the child. A grandparent can be considered as a “person having an interest in the welfare of the child” because the grandparent is related to the child.

What If One the Parents of Your Grandchild has Died?

If either parent of an un-emancipated minor child (a child who has not been declared liberated from his or her parents parental authority) is deceased, the 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 in the best interest of the minor child. Although you, as the grandparent, may propose a visitation schedule with your grandchild that you believe is reasonable, it is up to the court’s discretion to determine and make a finding of what a “reasonable visitation” is in your case. Additionally, Family Code section 3102 does not apply if the child has been adopted by a person who is not the stepparent or grandparent of the child. Moreover, any visitation rights that were granted before the adoption of the child by a person who is not the child’s stepparent or grandparent will automatically terminate upon the child’s adoption.

Both Parents are Still Living and a Case between the Grandchild’s Parents has already been Filed with the Court

Family Code 3103 states that if there is already a family law case filed between the child’s parents, 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. When pursuing grandparent visitation through a case that already exists between the parents, you must give notice of the petition to the parent, any stepparent, and any person who has physical custody of your grandchild. The notice must be given 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. It is also crucial to note that under Family Code 3103, there is rebuttable presumption (meaning that the presumption can be invalidated) that the visitation of a grandparent is not in the best interest of a minor child if your grandchild’s parents agree that the you should not be granted visitation rights.

What If There Is No Case Filed with the Court

Under Family Code Section 3104, the grandparent must open a case by filing a petition. 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 produced a bond such that visitation is in the best interest of the child; AND 2. Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority A petition for grandparent visitation may not be filed while the natural or adoptive parents are married unless one or more of the following circumstances exist:

• The parents are currently living separately and apart on a permanent or indefinite basis

• One of the parents has been absent for more than one month without the other spouse/parent knowing the whereabouts of the absent spouse/parent

• One of the parents joins the petition with you

• Your grandchild is not residing with either parent

• Your grandchild has been adopted by a stepparent

At any time when a change of circumstances occurs, such that none of the above listed circumstances exist, the parent or parents of your grandchild may request that the court terminate your grandparent visitation rights. The court will grant the parents’ request for termination. When opening a new case with the court and requesting grandparent visitation, you must give notice of the petition for grandparent visitation to each of the child’s parents, any stepparent, and any person who has physical custody of your grandchild by personal service. Like Family Code section 3103, 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 of the child agree that you should not be granted visitation rights. Additionally, there is another rebuttable presumption affecting the burden of proof that grandparent visitation is not in the best interest of a minor child if the parent who has been awarded sole legal physical custody of your grandchild in another proceeding, or the parent with whom the child resides if there is currently no effective custody order, objects to grandparent visitation. Lastly, like Family Code section 3104, when a court orders grandparent visitation pursuant to this section, the court, in its discretion, may:

• Allocate the percentage of grandparent visitation between the parents for purposes of calculating child support under Family Code 4050; AND

• Order a parent or grandparent to pay to the other, an amount for the support of the minor child. “Support” means costs related to the visitation, such as transportation costs, medical expenses, day care costs, and other necessities related to the basic expenses for the child

A Parent’s Fundamental Right to Raise His or Her Child is Not Unconditional

California Family Code section 3105 provides 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. cited

Grandparent Visitation Rights

In family law cases (as well as “civil” cases generally), either party is allowed to request that the court “join” someone or some entity to the family law case. When the court “joins” a person or entity to a case it has the effect of that person/entity becoming a party to the case. source

In order for a grandparent to seek custody rights of a child they must be joined as a third party.  Grandparent rights are not automatic, but are many times appropriate.  Certain qualifications must be met in order to be able to join as a third party, and then gain physical custody rights.  This is a multi-step process that demands an attorney with experience in the area.

Grandparents’ Rights in California

Grandparents have rights to visitation, custody, adoption, and guardianship or their grandchildren. Grandparents also have a right to have their grandchildren financially supported by a parent of a child while the child is in the grandparent’s physical custody; however, grandparents’ rights are not absolute.

This article briefly discusses a grandparent’s rights to custody, adoption, and guardianship of a grandchild, but but the focus of this article concerns grandparents’ rights to visitation and support of a grandchild. For more information on a grandparent’s rights to custody, adoption, or guardianship, please visit those corresponding pages.

For a grandparent to have rights to visitation or support of a grandchild the grandparent must first prove to the family court judge the following:

• There is a preexisting relationship between the grandparent and grandchild such that has engendered bonds between the grandparent and grandchild, and

• It is in the best interest of the child to visit his or her grandparent, as balanced against the rights of the parent, or parents of the child.

Thus, if there is no preexisting relationship between the grandparent and the grandchild, or, if it is not in the best interest of the grandchild to visit with his or her grandparents, then the family court judge may deny the grandparents the right to visit with the grandchild.

Also, if the grandchild’s parents are married, the grandparent must also prove at least one of the following factors before a family court judge will entertain grandparents’ rights to visitation and support (one of these factors must be present in addition to the two elements listed above if the child’s parents are married):

• The parents are not living together
• The parent’s whereabouts are unknown for at least a month
• One of the parents joins the grandparents’ petition
• The child does not live with either parent, or
• The child has been adopted by a stepparent

Note: If a grandparent has visitation rights established by the famil court, and the situation changes after establishing the grandparents’ rights, and none of the above listed exceptions applies, one, or both, parents can ask the court to end the grandparents’ rights.

Grandparents rights to visitation or support may not be established if the grandchild has been adopted by a person who is not related to the biological mother or father.

Also, before a grandmother or grandfather, or both, may be heard in family court, the court will require all the parties to attend mediation. If the parent, or parents, do not have a good relationship with the grandmother or grandfather, or both, then mediation can be handled in separate sessions so as to avoid any negative conflict between the parties.

Furthermore, establishing grandparents’ rights is the proper vehicle for maintaining visitation with grandchildren. When the mother or father, or both, are dangerous to their child or children, it is better for the grandparents to obtain child custody or a guardianship over the grandchild.

Finally, the grandparent must also prove that visitation is generally being denied by the parent or parents. In other words, if a grandparent typically visits with his or her grandchild a few times a year without objection by the parents then the grandparent will be denied extra visitation by the court. The idea is that if the existing relationship between the grandparent and grandchild consists of very few visits then that is the limit of the bond that has been established between grandparent and grandchild. However, if a parent reduces the number of visits or denies visits altogether then a grandparent can request from the family law judge that the grandchild maintain the level of visits previously enjoyed by the grandparents. If all visits have been denied then the family law judge can establish reasonable visitation.

Grandparents Rights v. Custody of Grandchildren Rights

When we speak of grandparents’ rights we are usually talking about the right to visit a grandchild, or the right to receive child support for your grandchild from the child’s parent or parents. The right to visit with grandchildren does not include the right to make decisions for them. If a grandparent is seeking to have the legal right to make legal decisions for the grandchild then the grandparent may request an order for custody of the grandchild. With custody, the grandparent will have the right, either solely, or jointly with the parent of the child, to make legal decisions on health care, schooling, religious activities, extra curricular activities, and more. It is more difficult to establish legal custody of a grandchild then to establish grandparents’ rights to visitation and support. Child custody issues are covered in more detail under child custody law.

Grandparents’ Rights v. Adopting of Grandchildren

As stated above, grandparents rights to visitation or support does not give the grandparent the right to legal custody of the grandchild. Child custody may sometimes be established for grandparents but that custody is often shared with the parent or parents. If the grandparent seeks to terminate the parents’ rights then an adoption of a grandchild by a grandparent may be requested. An adoption is a complete termination of the parents’ rights. An adoption of a grandchild by a grandparent gives the grandparent all the legal rights to a grandchild that the parent would otherwise enjoy. Adoptions can be complex in terms of procedure and only a qualified adoption and family law attorney should handle these types of cases. Adoptions are covered in more detail under adoption law.

Grandparents’ Rights v. Guardianship Rights

Again, establishing grandparents rights to visitation or support  will not give the grandparent any rights other than the right to visit the grandchild or have the grandchild financially supported while in the physical custody of the grandparent. For this reason, a request for legal guardianship of the grandchild is sometimes preferred. A guardianship is a legal relationship between a minor child and a guardian that gives the guardian certain rights and obligations regarding the child. A guardianship does not sever the legal relationship that exists between a child and his or her biological parents. Instead, it co-exists with that legal relationship, similar to joint legal custody but limited in scope. Guardianships may be temporary or permanent. Guardianships may be used for specific purposes such as to manage a child’s financial affairs or ensure that the child attends school. Usually a grandparent guardian will visit with the grandchild who is protected, also called the ward, but it is not necessary. Guardianships are covered in more detail under guardianship law.

How to File (Petition) for Grandparents Rights

To establish grandparents rights to visitation or support, the petitioner must fill out the proper family law forms and legal documents. Depending on the circumstances, those forms and legal documents can include any or all of the following: FL 100, 105, 300, 311, 341, UCCJEA, Assignment Sheet (usually a local court form), CII criminal background sheet (usually a local court form), Joinder Pleadings, and more. The law and procedure for establishing grandparents’ rights can be difficult to navigate and it is always best to use a family law attorney who is experienced with establishing grandparents’ rights.

We have included much of the pertinent law on grandparents’ rights to visitation and support at the right side of this page. For more information on California grandparent’s rights, guardianships, adoptions, or child custody (legal and physical), please contact the divorce and family law attorneys at Dorado & Dorado, APLC.

Our experienced divorce and family law attorneys have successfully represented hundreds of families in the Inland Empire. Our experience includes representation of grandparents seeking to establish visitation and support of their grandchildren as well as representation of mothers and fathers seeking to sever grandparents’ rights. We are among the largest family law firms in the San Bernardino and Riverside County area. Our consultations are provided at no cost seven days a week. source

Distinguishing Request for Custody from Request for Visitation

FL 3100(a) In making orders [guardianship]…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.

FL 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 child’s best interest…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.

FL 3103(a) Notwithstanding other law…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.

FL 3103(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.

FL 3103(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.

FL 3103(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.

FL 3103(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, allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support, and/or order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild.

FL3104(a) On petition to 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 grandchild that has engendered a bond such that visitation is in the child’s best interest, and 2) balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.

FL3104(b) A petition for visitation under this section shall 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 parent 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, 5) The child has been adopted by a stepparent, 6) One of the parents is incarcerated or institutionalized.

FL3104(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.

FL3104(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 the parent with whom the child resides if there is currently no operative custody order objects to visitation by the grandparent.

FL 3105(a) The law 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 right to maintain healthy, stable relationships with a person who has served in a significant, judicially approved parental role.

Do Grandparents Have Visitation Rights Only If The Parents Are Divorced?

 In general, grandparents cannot file for visitation rights while the grandchild’s parents are married. But there are exceptions, like:

• The parents are living separately;
  • A parent’s whereabouts are unknown (and have been for at least a month);
  • One of the parents joins the grandparent’s petition for visitation;
  • The child does not live with either of his or her parents; or
  • The grandchild has been adopted by a stepparent.

How Does A Grandparent Petition The Court For Relief?

In most situations, the parents of the child will already have an existing case pending before the court (i.e., dissolution of marriage, or custody/support case). If there is an already existing case, the grandparent must file a Motion for Joinder in order to be “joined” to the pending divorce/custody matter.

Under well-established statutory and case law, any party with physical custody or claiming custody or visitation rights with respect to a minor child of the parties’ relationship must be ordered joined. Under California Rules of Court section 5.24(e)(1):

“[T]he court must order that a person be joined as a party to the proceeding if the court discovers that person has physical custody or claims custody or visitation rights with respect to any minor child of the marriage, domestic partnership, or to any minor child of the relationship.” (Cal. Rules of Court §5.24(e)(1)(a).)

However, “before ordering the joinder of a grandparent of a minor child in the proceeding under Family Code section 3104, the court must take the actions described in section 3104(a). (Cal. Rules of Court §§5.24(e)(1)(b).), i.e.,
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.

If there is no dissolution of marriage or custody/support case pending before the Court, the grandparent must petition the court by filing his/her own individual petition for visitation rights (as opposed to petitioning to be joined to a pre-existing case).

What Are The Benefits Of Having A Grandparent-Child Relationship?

There are countless benefits from having a grandparent involved in a child’s life. First, there is an immediate biological linkage between the grandparent and the child. Second, the presence of grandparents in the formative years of children strongly helps in their character building. Third, grandparents are often the greatest supporters of the child’s interests because of their unconditional love for their grandchild.

Finally, grandparents are often the best teachers in the child’s life when it comes to cultural heritage and family history. Grandparents are a great source of the family history – precious knowledge to have. source

When Access to Grandchildren Becomes an Issue

Grandparents play an important part in enriching the lives of their grandchildren. Sadly, some grandparents are prevented from seeing or spending time with their grandchildren. This can, understandably, be upsetting for both grandchildren and grandparents.

There may be several reasons why grandparents are excluded from the lives of their grandchildren. Examples are an ongoing divorce proceeding between the child’s parents or unresolved issues between the child’s parents and the grandparents.

Unlike parents, grandparents do not automatically have legal authority concerning their grandchildren. The rights of grandparents concerning their grandchildren are determined by the family law in each state.

Enforcing Grandparents’ Rights: What You Need to Know

Many states allow grandparents to have visitation rights and, in some situations, custody. Learn about the consequences of parents violating a court order for grandparents to have access to their grandchildren.Grandparents often seek court-ordered visitation or custody when their adult child refuses to allow them to visit with or raise their grandchildren. If a court rendered an order for you, the grandparent, either custody or visitation, and you’re prevented from exercising those rights, you have recourse to enforce the order.

Consider meeting with a private mediator or counselor first

In mediation, parents and grandparents meet with a neutral person. Look for a family mediator – someone with experience mediating with families. If mediation works out, it can avoid court and is more likely to help you build a better relationship.

If you decide to start a court case, it can often cause tension between you and the child’s parents. And, the judge may not order the visits you want. If the parents are open to mediation, it can be best for everyone.

• ^[i] Cal. Fam. Code § 3102
• ^[ii] Cal. Fam. Code § 3104(b)
• ^[iii] Cal. Fam. Code § 3104(b); Marriage of Harris (2004) 34 Cal. 4th 210, 211
• ^[iv] Cal. Fam. Code § 3103
• ^[v] Cal. Fam. Code § 3104(b)(5); Finberg v. Manset (2014) 223 Cal. App. 4th 529, 532
• ^[vi] Cal. Fam. Code § 3102(c)
• ^[vii] See Punsly v. Ho (2001) 87 Cal. App. 4th 1099, 1108; Kyle O. v. Donald R. (2000) 85 Cal. App. 4th 848, 863; see also Ian J. v. Peter M. (2013) 213 Cal. App. 4th 189, 204.
• ^[viii] Marriage of Harris (2004) 34 Cal. 4th 210, 222
• ^[ix] Cal. Fam. Code § 3103(a).
• ^[x] Cal. Fam. Code § 3103(e), (h); see also Cal. Fam. Code § 8512.
• ^[xi] Cal. Fam. Code § 3103(d).

By Jennifer Wolf cited 

What is the Best Interests of the Child Checklist?

By Jennifer Wolf source 

The Best Interests of the Child is a standard that the courts use to determine what’s best for the kids when parents are disputing issues such as custody, access, support, special expenses, etc. Rarely do parents go to court over disputes, but when they do, the judge will look at family relationships, primary caretaking responsibilities, cultural and religious relationships, special needs, and such to make his or her ruling.

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

Best Interest Factors When Deciding Custody

Each state has its own set of factors—typically referred to as the best interest factors—that judges must evaluate when deciding custody. Although states may differ slightly, the most common factors include:

• the love, affection, and emotional ties between each parent and the child
• each parent’s ability to provide the child with a home, food, clothing, and the necessities of life
• the child’s preference (this factor is restricted in some states and greatly depends on the child’s age, mental capacity, and willingness to provide an opinion)
• each parent’s ability to give the child loving support, parental guidance, and discipline
• stability and consistency (courts like to keep the child’s routine consistent, so if the child has routinely lived with one parent and has developed a schedule, school, and childcare routines, the court is less likely to disrupt the child’s life with a change in custody)
• each parent’s moral fitness, drug and alcohol history, and the mental and physical health
• whether either parent has a history of child or domestic abuse
• each parent’s willingness to facilitate a healthy and continuing relationship between the child and the child’s other parent
• the child’s age and any special needs (younger children may require nursing and special needs children require specialized care that not all parents are capable of providing)
• the history of the child’s relationship with each parent. For example, has the child’s mother been a stay-at-home parent and bonded with the child to the extent that awarding substantial or sole custody to the child’s other parent would be detrimental?
• the child’s home, school, and community record, and
• the child’s relationships with other family members in the home, such as stepparents and siblings.

It’s important to understand that no single factor is more important than the other. Instead, the court will look at all the factors, facts, and family history to decide whether one or both parents are best suited to care for the child on a day-to-day basis. Additionally, each court can evaluate any other factors that the judge believes will affect the child’s best interests.

Some Courts Ask for Help

Some states allow the judge to ask a division of the family court for assistance with evaluating what’s in a child’s best interest when it comes to deciding custody.

For example, in Michigan, parents with custody disputes must file a motion with the Friend of the Court, which begins the process of a custody investigation. During the investigation, a social worker specially trained in custody and parenting time will meet separately with each parent and the child to evaluate what’s in the child’s best interest for custody and parenting time. At the end of the investigation, the social worker will prepare a written recommendation detailing the findings of the interviews (listing findings for each best interest factor) and will submit it to the court. In most cases, the judge adopts the worker’s recommendations, even if one parent objects.

Other states require parents to attend court-ordered mediation before asking the judge to decide. Mediation is a process where a neutral third-party helps facilitate a discussion between the parents about custody and helps the parents reach an agreement instead of asking the court to do it for them.

Custody mediators are trained in their state’s best interest factors and will help the parents understand how a judge would decide custody based on those factors, which avoids costly and needless litigation in court.

Although you may think you know what’s in your child’s best interest, it may not line up with your child’s other parent or what the court determines. Consider hiring an experienced family law attorney before you file for custody or try to resolve a custody dispute on your own. cited

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

Each Parent’s Ability to Meet Children’s Needs

The most basic part of the “best interests” standard is that custody decisions should serve the children’s health, safety, and welfare. Judges will look at whether one or both parents are able to handle a child’s special educational, medical, mental health, and other needs.

Children’s Relationship With Both Parents

Many states have an explicit policy of encouraging frequent and continuing contact between children and their divorced or separated parents. In pursuit of that goal, judges will consider several factors related to the past and present parent-child relationships.

Parents’ Willingness to Support Each Other’s Relationship With Their Children

Judges will look at the parents’ history of cooperating—or not— with each other around their parenting schedule. For instance, judges might want to know things like whether one parent interferes with visitation in any way.

Judges will also look for evidence of each parents’ willingness to foster a good relationship between their child and the other parent. Is one parent bad-mouthing the other in front of the kids? Does one parent tend to start arguments when picking up or dropping off the child with the other parent?

The more cooperative parents will usually have an edge in a custody dispute. And parents who are obviously trying to alienate a child from the other parent—or who just can’t refrain from undermining the other parent’s relationship with the kids—will learn the hard way that judges don’t look kindly on that type of behavior.

Parents’ Relationships With Their Children Before Divorce

Judges will look at each parent’s history of taking care of and spending time with their children on a day-to-day basis. Sometimes, parents who haven’t been much involved with their kids’ lives suddenly develop a strong desire to spend more time with the children once the marriage has ended.

In many cases, this desire is sincere, and a judge will respect it—especially if the parent has been dedicated to parenting during the separation period. But the judge will definitely take some time to evaluate the situation to make sure that a parent isn’t requesting custody primarily to win out over the other parent, and that a parent with little experience of daily caretaking can follow through with those new-found wishes.

History of Abuse or Neglect

Obviously, when there’s clear evidence of child abuse or neglect, a judge will limit the abusive parent’s contact with the children. If judges do award visitation in these cases, it will usually be supervised and structured in a way to protect the children from future emotional or physical harm.

Domestic violence against the other parent will also play into custody decisions, particularly when the kids have witnessed the abuse..

Children’s Need for Continuity and Stability

When it comes to children, judges are big on the status quo, because most of them believe that piling more change on top of the traumatic transition of divorce generally isn’t good for kids. Among other things, judges may look at the child’s ties to the current school and community.

So if you’re arguing that things are working fine, you’ve got a leg up on a spouse who’s arguing for a major change in the custody or visitation schedule that’s already in place.

Several other factors that judges consider are related to children’s need for stability after divorce.

Each Parent’s Living Situation

There’s a bit of a chicken-and-egg dilemma surrounding the issue of which parent keeps the family home and how that affects custody. Often, the judge awards the home to the parent with physical custody of the children, because that will provide stability and continuity in the children’s lives. Other times, the judge awards custody to the parent who’s going to stay in the family home, for the same reason.

Whether you’re the “out-parent” (the one who isn’t staying in the family home), or neither you nor your ex were able to keep the house after divorce, you’ll need to prove that your current living situation would be a good place for the children to spend a lot of time if you want primary or shared custody. Don’t expect to get that result if you’re crashing in your best friend’s guest room while you get back on your feet after the divorce.

At the same time, most judges will try to avoid penalizing parents who can’t afford a nice home with an ideal set-up for kids. (It’s also worth noting that the child support laws in many states allow judges to consider the differences in living standards between the parents’ households when they’re deciding on the amount of child support in cases where the kids will spend time with both parents.)

How Far Apart the Parents Live From Each Other

The proximity of your home to your spouse’s may also factor in to the judge’s custody decision. The closer you are to each other, the more likely it is that the judge will order a time-sharing plan that gives both parents significant time with the kids. When parents live in the same community, their children can continue with their same social, sports, and religious activities regardless of which parent they’re staying with on which day. Geographical distance becomes more important as kids get older and maintain stronger bonds with their friends.

It’s also less taxing on the children to go back and forth between parents who don’t live far apart.

The Children’s Preferences

Depending on the state and the children’s maturity, judges may talk to kids to find out where they want to live and how much time they want to spend with each parent. Or judges may learn about the children’s opinions from a custody evaluator.

Some states require judges to consider children’s custody preferences when they’ve reached a certain age, but they may listen to younger children’s view when it’s appropriate. In other states, the requirement isn’t about the child’s age as much as the ability to express an opinion based on sound reasoning—not on things like which parent will let them stay up late.

Still other states disapprove of bringing the children into custody decisions at all.

Does the Age of a Child Matter in Custody Decisions?

The “tender years” doctrine—the idea that young children should stay with their mothers—has long been officially out of fashion. The gender of the parents is not a factor to be considered in custody decisions, but some states still allow judges to consider the children’s age. And some judges continue to believe that younger children should live with their mothers, especially when the mother has been the primary caregiver. Certainly, it’s not likely that a father would be awarded sole custody of a nursing baby.

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

Best Interest of the Child Standard –

Test for the Factors Weighed by California Courts Under Family Code Sections 3011, 3020, 3040

Parents engaged in custody disputes frequently charge into court with a list of reasons supporting their position that the court should grant them custody of their child rather than the other parent.  These same parents frequently leave the courthouse without the orders they requested, wondering why nobody cares about their compelling and well-thought-out list.

Here is the not-so-secret reason nobody cares about that list: the list doesn’t address the factors the court considers when making child custody orders in California.  In truth, the list most likely focuses on the faults of the other parent rather than providing the court with any legally relevant information regarding the child.

Checklist for Parents Seeking Custody of Minor Children Under California Family Code 3011, 3020, 3040

The function of the family court is not to change, fix, or judge parents but to dispose of their disputes at a given point in time.  California family courts are wholly unconcerned about the personal grievances parents in a custody dispute have against one another.  Instead, the courts are guided by the factors and standards of the California Family Code.

Guide to Best Interest Standard – Family Code 3011, 3020, 3040

The Best Interests of the Child Standard (BIC) is not found in only one code section or case; it is a compilation of many different Family Code sections and case law. However, the standard primarily arises out of Family Code 3011, 3020, and 3040. These sections are used by family courts when making and modifying child custody orders.

The child’s best interest depends partly on the health and safety of the child’s mind and body (i.e. mental and physical). The family court considers how well the parents can keep a livable home and meet basic food, clothing, medical, and education needs of the child.

Of course, any issues having to do with drug or alcohol problems, sexual abuse, or any kind of domestic violence will be considered.

If the judge thinks the child is mature enough, the child’s own wishes must be a factor in the decision.

Below, each of the code sections making up the BIC Standard is unraveled:

California Family Code Section 3011 – Welfare of the Child

Family Code 3011 provides a broad non-exhaustive list of factors for California family courts to consider in making a determination of what custody and visitation orders are in the best interests of a child.  This section is the root of the commonly referenced “Best Interest Standard” in California family law jurisprudence, and provides a road-map for custody attorneys, child custody mediators, parents, and judges.

While it may seem axiomatic for the court to consider the health, safety, and welfare of a child in making orders regarding where and with whom a child will live, this section mandates the consideration.  Section 3011 also creates a rebuttable presumption against awarding custody to parents who have substance abuse problems – implying that the California State Legislature views substance abuse as a crisis directly impacting the safety and well-being of children.

The best interests of the child, as a matter of public policy in California, always trumps the rights and interests of parents.  However, Section 3011 also creates protections for parents/guardians seeking custody of a child in family court by giving the court discretion to require independent corroboration as a prerequisite to considering allegations of abuse.  A history of abuse may also trigger other presumptions affecting custody of a child under the Family Code, such as those outlined in Family Code 3044 regarding domestic violence findings.

Family Code Section 3011 provides that:

(a) In making a determination of the best interests of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant and consistent with Section 3020, consider all of the following:

(1) The health, safety, and welfare of the child.

(2)(A) A history of abuse by one parent or any other person seeking custody against any of the following:

(i) A child to whom the parent or person seeking custody is related by blood or affinity or with whom the parent or person seeking custody has had a caretaking relationship, no matter how temporary.

(ii) The other parent.

(iii) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.

(B) As a prerequisite to considering allegations of abuse, the court may require independent corroboration, including, but 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 sexual assault or domestic violence. As used in this paragraph, “abuse against a child” means “child abuse and neglect” as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in clause (ii) or (iii) of subparagraph (A) means “abuse” as defined in Section 6203.

(3) The nature and amount of contact with both parents, except as provided in Section 3046.

(4) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this paragraph, “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.

(5)(A) When allegations about a parent pursuant to paragraphs (2) or (4) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (c) of Section 6323.

(B) This paragraph does not apply if the parties stipulate in writing or on the record regarding custody or visitation.

(b) Notwithstanding subdivision (a), the court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child.

Family Courts Cannot Consider Sex, Gender, Gender Identity, Gender Expression, or Sexual Orientation

Arguably the most important take-away from Section 3011 is subsection (b), prohibiting the court from considering a parent or guardian’s sex, gender identity, gender expression, or sexual orientation in determining the best interests of the child.

This subsection coupled with the proclamation of Family Code 3010 that a mother and father are “equally entitled to the custody of the child” expresses the clear California legislative declaration that historical bias in favor of mothers and against LGBTQ parents is not consistent with the public policy of the State of California.  This notion is again addressed in Section 3020 and Section 3040 presumably because of the long-standing bias and perceived bias in custody matters.

California Family Code 3020 – Children Should Have Frequent and Continuing Contact with Both Parents and Have a Right to Be Safe and Free From Abuse

The “frequent and continuing contact” language of Section 3020 is commonly utilized by judges, and custody attorneys in family court when requesting and making child custody orders.

At its core, this section is putting California on notice that parents are expected to work together in raising children even when the parents are not in a relationship (i.e. married, dating, living together, etc.), and it is presumed to be in a child’s best interest to see both parents regularly unless there is a legally valid reason (i.e. abuse, substance abuse, etc.) otherwise.

(a) The Legislature finds and declares that it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that children have the right to be safe and free from abuse, and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.

(b) The Legislature finds and declares that it is the public policy of this state to ensure 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 when the contact would not be in the best interests of the child, as provided in subdivisions (a) and (c) of this section and Section 3011.

(c) When the policies set forth in subdivisions (a) and (b) of this section are in conflict, a 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.

(d) The Legislature finds and declares that it is the public policy of this state to ensure that the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative is not considered in determining the best interests of the child.

Family Code 3020 doubles down on Section 3011 by declaring that the chief concern of the State with regard to custody of children is the “best interests” of the minor children.

California Family Code 3040 Grants the Court Wide Discretion to Choose Visitation Schedules for Children

The commonly misconstrued language of Family Code Section 3040, subsection (a)(1), is often incorrectly applied by both litigants and attorneys alike.  The plain language seems to create a presumption that it is in the best interest of children for parents to share joint legal and physical custody.

Further reading of the section is necessary to ascertain the true legislative intent, however, as subsection (d) declares that Family Code 3040 does not establish a preference or presumption in favor of joint legal or physical custody, but grants the court and family “the widest” discretion to choose a parenting plan consistent with the best interests of the child (as enumerated in Section 3011).

If no presumption in favor of joint legal and physical custody is created by Section 3040(a), then what does it mean?

Section 3040(a) dictates that the order of preference in granting custody of a child is as follows: first, to the parents of the child; second, if to neither parent, then to someone with whom the child has been living in a stable/wholesome environment; and finally, if to neither parent or someone with whom the child is living, then to any other suitable person who can provide adequate care and guidance to the child. This section can be used to award custody of a child to a step-parent or guardian.

That is to say that California courts will grant custody to a parent before any third party unless it is not in the best interest of the child to do so.

Subsection (a)(1) also creates a mandate on the family court to consider which parent is more likely to facilitate frequent and continuing contact with the other parent.  This provision can create problems for parents who are unable to co-parent and parents who engage in alienating behaviors.

Family Code 3040 provides that:

(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 Sections 3011 and 3020. 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) The immigration status of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody under subdivision (a).

(c) The court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interest of the child under subdivision (a).

(d) 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, consistent with this section.

(e) In cases where a child has more than two parents, the court shall allocate custody and visitation among the parents based on the best interest of the child, including, but not limited to, addressing the child’s need for continuity and stability by preserving established patterns of care and emotional bonds. The court may order that not all parents share legal or physical custody of the child if the court finds that it would not be in the best interest of the child as provided in Sections 3011 and 3020.

Applying the Best Interest of the Child Standard

Parents do not have to fight to win. In fact, if the parents have not already agreed on what they want to happen, the court will make them try mediation to work out a custody agreement and a full parenting plan. Only if all else fails will the couple face a family law judge who will make the decisions.

No matter if the judge must force a plan on a couple or approve a child custody agreement they have already drawn up, state law requires that everyone focus on doing what is in the child’s best interest. cited 

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

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Click here to learn What Law is Used in Determining Factor in FAM § 3011 – Determining Best Interest Child – Family Code 3011