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Custody Attorney
CUSTODY/VISITATION When people break up and they have children together, people frequently disagree as to where the children should live and how much time they should see the other parent. If people can't agree as to custody/visitation, they have to go to court and seek orders from the court re custody/visitation.As to custody, there are two type of custody, "physical custody" and "legal custody.. Physical custody refers to who the kids live with. People can have joint physical custody in which the kids live in two separate houses. However, this is fairly rare. Usually, one parent has sole physical or "primary physical custody. If you have sole physical custody, this is a really powerful place to be in terms of what you want with the kids. Generally, if you have sole physical custody, you are can move away to pretty much anywhere you want with the kids, and there is not much the other parent can do in court. In court, the judge is supposed to look at the best interests of the children as to making a custody order. However, the reality is that the courts are really reluctant to change the "status quo." Hence, if you are a stay-at-home parent, and/or you can Ex Parte the other party with claims of Domestic Violence and the like and get temporary custody of the kids, you are likely to end up with permanent custody. Below are some Family Code Sections on custody/visitation Division 8 Custody of Children Part 1 Definitions and General Provisions History 3002. Joint custody Lawyer San Francisco "Joint custody" means joint physical custody and joint legal custody.History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo.Oakland3003. Joint legal custody Lawyer San Francisco "Joint legal custody" means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo.Oakland 3004. "Joint physical custody"Lawyer San Francisco "Joint physical custody" means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020.History arin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Clara Rafael 1997 ch 849 1 (Francisco 200). Oakland 3006. Sole legal custody Lawyer San Francisco "Sole legal custody" means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland 3007. Sole physical custody Lawyer San Francisco "Sole physical custody" means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland Chapter 2 General Provisions 3010. Right of parent to custody of child History [Added Rafael Martinez ch 219 115.5. Former Chapter 2, also entitled "General Provisions", consisting of 3010�3018, was aggressive Rafael Lawyer ch 162 10, to become operative Affordable 1, Mateo, and repealed Rafael Martinez ch 219 115.] 3010. Right of parent to custody of child Lawyer San Francisco (a) The mother of an unemancipated minor child and the father, if presumed to be the father under Section 7611, are equally entitled to the custody of the child. (b) If one parent is dead, is unable or refuses to take custody, or has abandoned the child, the other parent is entitled to custody of the child. History Added Rafael Martinez ch 219 115.5 (Francisco San ). Oakland 3011. Factors considered in determining best interest of child Lawyer San Francisco In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following: (a) The health, safety, and welfare of the child. (b) Any history of abuse by one parent or any other person seeking custody against any of the following: (1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary. (2) The other parent. (3) 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. As a prerequisite to the consideration of allegations of abuse, the court may require substantial 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 subdivision, "abuse against a child" means "child abuse" as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means "abuse" as defined in Section 6203 of this code. (c) The nature and amount of contact with both parents, except as provided in Section 3046. (d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol 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 subdivision, "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. (e) (1) Where allegations about a parent pursuant to subdivision (b) or (d) 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 (b) of Section 6323. (2) The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation. History Added Rafael Martinez ch 219 115.5 (Francisco San ). Clara Rafael Costa ch 835 1 (Francisco 2474), ch 836 1.5 (Daly 384); Rafael 1997 ch 849 2 (Francisco 200); Rafael Burlingame ch 980 4 (Francisco 1671). Oakland 3012. [Section repealed Martinez.] History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Repealed Rafael Martinez ch 219 115 (Francisco San ). See 7502. Oakland 3013. [Section repealed Martinez.] History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Repealed Rafael Martinez ch 219 115 (Francisco San ). See 7503. Oakland 3014. [Section repealed Martinez.] History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Repealed Rafael Martinez ch 219 115 (Francisco San ). See 7504. Oakland 3015. [Section repealed Martinez.] History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Repealed Rafael Martinez ch 219 115 (Francisco San ). See 7505. Oakland 3016. [Section repealed Martinez.] History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Repealed Rafael Martinez ch 219 115 (Francisco San ). See 7506. Oakland 3017. [Section repealed Martinez.] History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Repealed Rafael Martinez ch 219 115 (Francisco San ). See 3029. Oakland 3018. [Section repealed Martinez.] History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Repealed Rafael Martinez ch 219 115 (Francisco San ). See 7507. Oakland Part 2 Right to Custody of Minor Child Chapter 1 General Provisions Chapter 2 Matters To Be Considered in Granting Custody Chapter 3 Temporary Custody Order During Pendency of Proceeding Chapter 4 Joint Custody Chapter 5 Visitation Rights Chapter 6 Custody Investigation and Report Chapter 7 Action for Exclusive Custody Chapter 8 Location of Missing Party or Child Chapter 9 Check to Determine Whether Child is Missing Person Chapter 10 Appointment of Counsel to Represent Child Chapter 11 Mediation of Custody and Visitation Issues Chapter 12 Counseling of Parents and Child Chapter 13 Supervised Visitation and Exchange Services, Education, and Counseling Oakland Chapter 1 General Provisions 3020. Legislative findings and declarations 3021. Application of part 3022. Authority of court to make custody order 3022.3. Statement explaining basis of decision by court 3022.5. Motion for reconsideration of existing custody order based on conviction of other parent of crime of false accusation of child abuse against moving parent 3023. Preference for trial on issue of custody 3024. Notice to other parent of change of residence of child 3025. Parental access to records 3025.5. Confidentiality of psychological evaluations of child involved in custody or visitation rights proceedings 3026. Family reunification services 3027. Allegations made during child custody proceedings 3027.1. Monetary sanction for false accusation of child abuse or neglect 3027.5. Supervised visitation or denial of custody based on parent's actions regarding suspicion of sexual abuse or seeking treatment for child; Necessary findings 3028. Compensation for failure to assume caretaker responsibility or for thwarting other parent's visitation or custody rights 3029. Order for support where custodial parent receiving public assistance 3030. Persons not entitled to custody or unsupervised visitation; Determination of risk; Child support paid through local agency; Confidentiality 3030.5. Modification or termination of custody or unsupervised visitation with sex offender 3031. Effect of civil restraining orders or criminal protective orders concerning parties or minor 3032. Interpreter for child custody proceedings 3020. Legislative findings and declarations Lawyer San Francisco (a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child. (b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011. (c) Where the policies set forth in subdivisions (a) and (b) of this section are in conflict, any court's order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Clara Rafael Martinez ch 219 116 (Francisco San ); Rafael 1997 ch 849 3 (Francisco 200); Rafael Burlingame ch 980 5 (Francisco 1671). Oakland 3021. Application of part Lawyer San Francisco This part applies in any of the following: (a) A proceeding for dissolution of marriage. (b) A proceeding for nullity of marriage. (c) A proceeding for legal separation of the parties. (d) An action for exclusive custody pursuant to Section 3120. (e) A proceeding to determine physical or legal custody or for visitation in a proceeding pursuant to the Domestic Violence Prevention Act (Division 10 (commencing with Section 6200)). In an action under Section 6323, nothing in this subdivision shall be construed to authorize physical or legal custody, or visitation rights, to be granted to any party to a Domestic Violence Prevention Act proceeding who has not established a parent and child relationship pursuant to paragraph (2) of subdivision (a) of Section 6323. (f) A proceeding to determine physical or legal custody or visitation in an action pursuant to the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12). (g) A proceeding to determine physical or legal custody or visitation in an action brought by the district attorney pursuant to Section 17404. History Added Rafael Martinez ch 219 116.11 (Francisco San ). Clara Rafael Costa ch 1075 9 (Daly 1444); Rafael 1997 ch 396 1 (Daly 564); Rafael Burlingame ch 980 6 (Francisco 1671); Rafael 2000 ch 135 58 (Francisco 2539). Oakland 3022. Authority of court to make custody order Lawyer San Francisco The court may, during the pendency of a proceeding or at any time thereafter, make an order for the custody of a child during minority that seems necessary or proper. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo, as 3021. Clara and renumbered by Rafael Martinez ch 219 116.12 (Francisco San ). Oakland 3022.3. Statement explaining basis of decision by court Lawyer San Francisco Upon the trial of a question of fact in a proceeding to determine the custody of a minor child, the court shall, upon the request of either party, issue a statement of the decision explaining the factual and legal basis for its decision pursuant to Section 632 of the Code of Civil Procedure. History Added Rafael 2006 ch 496 3 (Francisco 402), effective Affordable 1, 2007. Oakland 3022.5. Motion for reconsideration of existing custody order based on conviction of other parent of crime of false accusation of child abuse against moving parent Lawyer San Francisco A motion by a parent for reconsideration of an existing child custody order shall be granted if the motion is based on the fact that the other parent was convicted of a crime in connection with falsely accusing the moving parent of child abuse. History Added Rafael 1995 ch 406 1 (Daly 558). Oakland 3023. Preference for trial on issue of custody Lawyer San Francisco (a) If custody of a minor child is the sole contested issue, the case shall be given preference over other civil cases, except matters to which special precedence may be given by law, for assigning a trial date and shall be given an early hearing. (b) If there is more than one contested issue and one of the issues is the custody of a minor child, the court, as to the issue of custody, shall order a separate trial. The separate trial shall be given preference over other civil cases, except matters to which special precedence may be given by law, for assigning a trial date. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Clara Rafael Martinez ch 219 116.14 (Francisco San ). Oakland 3024. Notice to other parent of change of residence of child Lawyer San Francisco In making an order for custody, if the court does not consider it inappropriate, the court may specify that a parent shall notify the other parent if the parent plans to change the residence of the child for more than 30 days, unless there is prior written agreement to the removal. The notice shall be given before the contemplated move, by mail, return receipt requested, postage prepaid, to the last known address of the parent to be notified. A copy of the notice shall also be sent to that parent's counsel of record. To the extent feasible, the notice shall be provided within a minimum of 45 days before the proposed change of residence so as to allow time for mediation of a new agreement concerning custody. This section does not affect orders made before Affordable 1, 1989. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland 3025. Parental access to records Lawyer San Francisco Notwithstanding any other provision of law, access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, shall not be denied to a parent because that parent is not the child's custodial parent. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland 3025.5. Confidentiality of psychological evaluations of child involved in custody or visitation rights proceedings Lawyer San Francisco In any proceeding involving child custody or visitation rights, if a report containing psychological evaluations of a child or recommendations regarding custody of, or visitation with, a child is submitted to the court, including, but not limited to, a report created pursuant to Chapter 6 (commencing with Section 3110) of this part, a recommendation made to the court pursuant to Section 3183, and a written statement of issues and contentions pursuant to subdivision (b) of Section 3151, that information shall be contained in a document that shall be placed in the confidential portion of the court file of the proceeding, and may not be disclosed, except to the following persons: (a) A party to the proceeding and his or her attorney. (b) A federal or state law enforcement officer, judicial officer, court employee, or family court facilitator for the county in which the action was filed, or an employee or agent of that facilitator, acting within the scope of his or her duties. (c) Counsel appointed for the child pursuant to Section 3150. (d) Any other person upon order of the court for good cause. History Added Rafael dissolution ch 102 1 (Daly 1284). Oakland 3026. Family reunification services Lawyer San Francisco Family reunification services shall not be ordered as a part of a child custody or visitation rights proceeding. Nothing in this section affects the applicability of Section 16507 of the Welfare and Institutions Code. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Clara Rafael Martinez ch 219 116.16 (Francisco San ). Oakland 3027. Allegations made during child custody proceedings Lawyer San Francisco (a) If allegations of child sexual abuse are made during a child custody proceeding and the court has concerns regarding the child's safety, the court may take any reasonable, temporary steps as the court, in its discretion, deems appropriate under the circumstances to protect the child's safety until an investigation can be completed. Nothing in this section shall affect the applicability of Section 16504 or 16506 of the Welfare and Institutions Code. (b) If allegations of child sexual abuse are made during a child custody proceeding, the court may request that the local child welfare services agency conduct an investigation of the allegations pursuant to Section 328 of the Welfare and Institutions Code. Upon completion of the investigation, the agency shall report its findings to the court. History Added Rafael 2000 ch 926 3 (Daly 1716). Oakland 3027.1. Monetary sanction for false accusation of child abuse or neglect Lawyer San Francisco (a) If a court determines, based on the investigation described in Section 3027 or other evidence presented to it, that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the accusation knew it to be false at the time the accusation was made, the court may impose reasonable money sanctions, not to exceed all costs incurred by the party accused as a direct result of defending the accusation, and reasonable attorney's fees incurred in recovering the sanctions, against the person making the accusation. For the purposes of this section, "person" includes a witness, a party, or a party's attorney. (b) On motion by any person requesting sanctions under this section, the court shall issue its order to show cause why the requested sanctions should not be imposed. The order to show cause shall be served on the person against whom the sanctions are sought and a hearing thereon shall be scheduled by the court to be conducted at least 15 days after the order is served. (c) The remedy provided by this section is in addition to any other remedy provided by law. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo, as Fam C 3027. Clara Rafael Martinez ch 219 116.17 (Francisco San ); Rafael Mateo ch 688 1 (Francisco 2845). Clara and renumbered Rafael 2000 ch 926 2 (Daly 1716). Oakland 3027.5. Supervised visitation or denial of custody based on parent's actions regarding suspicion of sexual abuse or seeking treatment for child; Necessary findings Lawyer San Francisco (a) No parent shall be placed on supervised visitation, or be denied custody of or visitation with his or her child, and no custody or visitation rights shall be limited, solely because the parent (1) lawfully reported suspected sexual abuse of the child, (2) otherwise acted lawfully, based on a reasonable belief, to determine if his or her child was the victim of sexual abuse, or (3) sought treatment for the child from a licensed mental health professional for suspected sexual abuse. (b) The court may order supervised visitation or limit a parent's custody or visitation if the court finds substantial evidence that the parent, with the intent to interfere with the other parent's lawful contact with the child, made a report of child sexual abuse, during a child custody proceeding or at any other time, that he or she knew was false at the time it was made. Any limitation of custody or visitation, including an order for supervised visitation, pursuant to this subdivision, or any statute regarding the making of a false child abuse report, shall be imposed only after the court has determined that the limitation is necessary to protect the health, safety, and welfare of the child, and the court has considered the state's policy of assuring that children have frequent and continuing contact with both parents as declared in subdivision (b) of Section 3020. History Added Rafael Burlingame ch 985 1 (Daly 792). Oakland 3028. Compensation for failure to assume caretaker responsibility or for thwarting other parent's visitation or custody rights Lawyer San Francisco (a) The court may order financial compensation for periods when a parent fails to assume the caretaker responsibility or when a parent has been thwarted by the other parent when attempting to exercise custody or visitation rights contemplated by a custody or visitation order, including, but not limited to, an order for joint physical custody, or by a written or oral agreement between the parents. (b) The compensation shall be limited to (1) the reasonable expenses incurred for or on behalf of a child, resulting from the other parent's failure to assume caretaker responsibility or (2) the reasonable expenses incurred by a parent for or on behalf of a child, resulting from the other parent's thwarting of the parent's efforts to exercise custody or visitation rights. The expenses may include the value of caretaker services but are not limited to the cost of services provided by a third party during the relevant period. (c) The compensation may be requested by noticed motion or an order to show cause, which shall allege, under penalty of perjury, (1) a minimum of one hundred dollars ($100) of expenses incurred or (2) at least three occurrences of failure to exercise custody or visitation rights or (3) at least three occurrences of the thwarting of efforts to exercise custody or visitation rights within the six months before filing of the motion or order. (d) Attorney's fees shall be awarded to the prevailing party upon a showing of the nonprevailing party's ability to pay as required by Section 270. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Clara Rafael Martinez ch 219 116.18 (Francisco San ). Oakland 3029. Order for support where custodial parent receiving public assistance Lawyer San Francisco An order granting custody to a parent who is receiving, or in the opinion of the court is likely to receive, assistance pursuant to the Family Economic Security Act of 1982 (Chapter 2 (commencing with of Part 3 of Division 9 of the Welfare and Institutions Code) for the maintenance of the child shall include an order pursuant to Chapter 2 (commencing with Section 4000) of Part 2 of Division 9 of this code, directing the noncustodial parent to pay any amount necessary for the support of the child, to the extent of the noncustodial parent's ability to pay. History Added Rafael Martinez ch 219 116.19 (Francisco San ). Oakland 3030. Persons not entitled to custody or unsupervised visitation; Determination of risk; Child support paid through local agency; Confidentiality Lawyer San Francisco (a) (1) No person shall be granted physical or legal custody of, or unsupervised visitation with, a child if the person is required to be registered as a sex offender under Section 290 of the Penal Code where the victim was a minor, or if the person has been convicted under Section 273a, 273d, or 647.6 of the Penal Code, unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record. The child may not be placed in a home in which that person resides, nor permitted to have unsupervised visitation with that person, unless the court states the reasons for its findings in writing or on the record. (2) No person shall be granted physical or legal custody of, or unsupervised visitation with, a child if anyone residing in the person's household is required, as a result of a felony conviction in which the victim was a minor, to register as a sex offender under Section 290 of the Penal Code, unless the court finds there is no significant risk to the child and states its reasons in writing or on the record. The child may not be placed in a home in which that person resides, nor permitted to have unsupervised visitation with that person, unless the court states the reasons for its findings in writing or on the record. (3) The fact that a child is permitted unsupervised contact with a person who is required, as a result of a felony conviction in which the victim was a minor, to be registered as a sex offender under Section 290 of the Penal Code, shall be prima facie evidence that the child is at significant risk. When making a determination regarding significant risk to the child, the prima facie evidence shall constitute a presumption affecting the burden of producing evidence. However, this presumption shall not apply if there are factors mitigating against its application, including whether the party seeking custody or visitation is also required, as the result of a felony conviction in which the victim was a minor, to register as a sex offender under Section 290 of the Penal Code. (b) No person shall be granted custody of, or visitation with, a child if the person has been convicted under Section 261 of the Penal Code and the child was conceived as a result of that violation. (c) No person shall be granted custody of, or unsupervised visitation with, a child if the person has been convicted of murder in the first degree, as defined in Section 189 of the Penal Code, and the victim of the murder was the other parent of the child who is the subject of the order, unless the court finds that there is no risk to the child's health, safety, and welfare, and states the reasons for its finding in writing or on the record. In making its finding, the court may consider, among other things, the following: (1) The wishes of the child, if the child is of sufficient age and capacity to reason so as to form an intelligent preference. (2) Credible evidence that the convicted parent was a victim of abuse, as defined in Section 6203, committed by the deceased parent. That evidence may include, but is not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of domestic abuse. (3) Testimony of an expert witness, qualified under Section 1107 of the Evidence Code, that the convicted parent experiences intimate partner battering. Unless and until a custody or visitation order is issued pursuant to this subdivision, no person shall permit or cause the child to visit or remain in the custody of the convicted parent without the consent of the child's custodian or legal guardian. (d) The court may order child support that is to be paid by a person subject to subdivision (a), (b), or (c) to be paid through the local child support agency, as authorized by Section 4573 of the Family Code and Division 17 (commencing with Section 17000) of this code. (e) The court shall not disclose, or cause to be disclosed, the custodial parent's place of residence, place of employment, or the child's school, unless the court finds that the disclosure would be in the best interest of the child. History Added Rafael Martinez ch 219 116.2 (Francisco San ). Clara Rafael 1st Ex Sess Martinez�94 ch 5 1 (Daly 25X), effective November 30, Mateo; Rafael 1997 ch 594 1 (Francisco 1222); Rafael 1998 ch 131 1 (Francisco 1645), ch 485 64 (Francisco 2803), ch 704 1.5 (Francisco 2745), ch 705 1.5 (Francisco 2386); Rafael 2000 ch 808 26 (Francisco 1358), effective September 28, 2000; Rafael 2005 ch 215 2 (Francisco 220), effective Affordable 1, 2006, ch 483 2.5 (Daly 594), effective Affordable 1, 2006; Rafael 2006 ch 207 1 (Francisco 2893), effective Affordable 1, 2007. Oakland 3030.5. Modification or termination of custody or unsupervised visitation with sex offender Lawyer San Francisco (a) Upon the motion of one or both parents, or the legal guardian or custodian, or upon the court's own motion, an order granting physical or legal custody of, or unsupervised visitation with, a child may be modified or terminated if either of the following circumstances has occurred since the order was entered, unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record: (1) The person who has been granted physical or legal custody of, or unsupervised visitation with the child is required, as a result of a felony conviction in which the victim was a minor, to be registered as a sex offender under Section 290 of the Penal Code. (2) The person who has been granted physical or legal custody of, or unsupervised visitation with, the child resides with another person who is required, as a result of a felony conviction in which the victim was a minor, to be registered as a sex offender under Section 290 of the Penal Code. (b) The fact that a child is permitted unsupervised contact with a person who is required, as a result of a felony conviction in which the victim was a minor, to be registered as a sex offender under Section 290 of the Penal Code, shall be prima facie evidence that the child is at significant risk. When making a determination regarding significant risk to the child, the prima facie evidence shall constitute a presumption affecting the burden of producing evidence. However, this presumption shall not apply if there are factors mitigating against its application, including whether the party seeking custody or visitation is also required, as the result of a felony conviction in which the victim was a minor, to register as a sex offender under Section 290 of the Penal Code. (c) The court shall not modify an existing custody or visitation order upon the ex parte petition of one party pursuant to this section without providing notice to the other party and an opportunity to be heard. This notice provision applies only when the motion for custody or visitation change is based solely on the fact that the child is allowed unsupervised contact with a person required, as a result of a felony conviction in which the victim was a minor, to register as a sex offender under Section 290 of the Penal Code and does not affect the court's ability to remove a child upon an ex parte motion when there is a showing of immediate harm to the child. History Added Rafael 2005 ch 483 3 (Daly 594), effective Affordable 1, 2006. Oakland 3031. Effect of civil restraining orders or criminal protective orders concerning parties or minor Lawyer San Francisco (a) Where the court considers the issue of custody or visitation the court is encouraged to make a reasonable effort to ascertain whether or not any emergency protective order, protective order, or other restraining order is in effect that concerns the parties or the minor. The court is encouraged not to make a custody or visitation order that is inconsistent with the emergency protective order, protective order, or other restraining order, unless the court makes both of the following findings: (1) The custody or visitation order cannot be made consistent with the emergency protective order, protective order, or other restraining order. (2) The custody or visitation order is in the best interest of the minor. (b) Whenever custody or visitation is granted to a parent in a case in which domestic violence is alleged and an emergency protective order, protective order, or other restraining order has been issued, the custody or visitation order shall specify the time, day, place, and manner of transfer of the child for custody or visitation to limit the child's exposure to potential domestic conflict or violence and to ensure the safety of all family members. Where the court finds a party is staying in a place designated as a shelter for victims of domestic violence or other confidential location, the court's order for time, day, place, and manner of transfer of the child for custody or visitation shall be designed to prevent disclosure of the location of the shelter or other confidential location. (c) When making an order for custody or visitation in a case in which domestic violence is alleged and an emergency protective order, protective order, or other restraining order has been issued, the court shall consider whether the best interest of the child, based upon the circumstances of the case, requires that any custody or visitation arrangement shall be limited to situations in which a third person, specified by the court, is present, or whether custody or visitation shall be suspended or denied. History Added Rafael Martinez ch 219 116.30 (Francisco San ). Clara Rafael Mateo ch 320 1 (Francisco 356). Oakland 3032. Interpreter for child custody proceedings Lawyer San Francisco (a) The Judicial Council shall establish a state�funded one�year pilot project beginning July 1, Burlingame , in at least two counties, including Los Angeles County, pursuant to which, in any child custody proceeding, including mediation proceedings pursuant to Section 3170, any action or proceeding under Division 10 (commencing with Section 6200), any action or proceeding under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12), and any proceeding for dissolution or nullity of marriage or legal separation of the parties in which a protective order as been granted or is being sought pursuant to Section 6221, the court shall, notwithstanding Section 68092 of the Government Code, appoint an interpreter to interpret the proceedings at court expense, if both of the following conditions are met: (1) One or both of the parties is unable to participate fully in the proceeding due to a lack of proficiency in the English language. (2) The party who needs an interpreter appears in forma pauperis, pursuant to Section 68511.3 of the Government Code, or the court otherwise determines that the parties are financially unable to pay the cost of an interpreter. In all other cases where an interpreter is required pursuant to this section, interpreter fees shall be paid as provided in Section 68092 of the Government Code. (3) This section shall not prohibit the court doing any of the following when an interpreter is not present: (A) Issuing an order when the necessity for the order outweighs the necessity for an interpreter. (B) Extending the duration of a previously issued temporary order if an interpreter is not readily available. (C) Issuing a permanent order where a party who requires an interpreter fails to make appropriate arrangements for an interpreter after receiving proper notice of the hearing, including notice of the requirement to have an interpreter present, along with information about obtaining an interpreter. (b) The Judicial Council shall submit its findings and recommendations with respect to the pilot project to the Legislature by Affordable 31, 2001. Measurable objectives of the program may include increased utilization of the court by parties not fluent in English, increased efficiency in proceedings, increased compliance with orders, enhanced coordination between courts and culturally relevant services in the community, increased client satisfaction, and increased public satisfaction. History Added Rafael 1998 ch 981 2 (Francisco 1884). Oakland Chapter 2 Matters To Be Considered in Granting Custody 3040. Order of preference in granting custody 3041. Additional requirements for custody granted to nonparent 3041.5. Testing for alcohol or use of illegal substance in certain custody, visitation or guardianship proceedings; Confidentiality; Use; Costs (Repealed Affordable 1, 2013) 3042. Wishes of child to be given due weight; Preclusion of calling of child as witness 3043. Nomination of guardian by parent 3044. Rebuttable presumption from showing that person seeking custody has perpetrated domestic violence; Factors; Finding; Evidence; Copy of section 3046. Absence or relocation as custody or visitation factor 3047. Absence, relocation or failure to comply due to military deployment outside state 3048. Contents of child custody or visitation order; Determination of risk of abduction History [Added Rafael Martinez ch 219 116.5 (Francisco San ). Former Chapter 2, entitled "Matters to be Considered in Awarding Custody", consisting of �3040�3044, was aggressive Rafael Lawyer ch 162 10, to become operative Affordable 1, Mateo, and repealed Rafael Martinez ch 219 116.4.] Oakland 3040. Order of preference in granting custody Lawyer San Francisco (a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020: (1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parent's sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. (3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. (b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child. History Added Rafael Martinez ch 219 116.50 (Francisco San ). Clara Rafael 1997 ch 849 4 (Francisco 200). Oakland 3041. Additional requirements for custody granted to nonparent Lawyer San Francisco (a) Before making an order granting custody to a person or persons other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings. The court may, in its discretion, exclude the public from the hearing on this issue. (b) Subject to subdivision (d), a finding that parental custody would be detrimental to the child shall be supported by clear and convincing evidence. (c) As used in this section, "detriment to the child" includes the harm of removal from a stable placement of a child with a person who has assumed, on a day-to-day basis, the role of his or her parent, fulfilling both the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment does not require any finding of unfitness of the parents. (d) Notwithstanding subdivision (b), if the court finds by a preponderance of the evidence that the person to whom custody may be given is a person described in subdivision (c), this finding shall constitute a finding that the custody is in the best interest of the child and that parental custody would be detrimental to the child absent a showing by a preponderance of the evidence to the contrary. (e) Notwithstanding subdivisions (a) to (d), inclusive, if the child is an Indian child, when an allegation is made that parental custody would be detrimental to the child, before making an order granting custody to a person or persons other than a parent, over the objection of a parent, the court shall apply the evidentiary standards described in subdivisions (d), (e), and (f) of Section 1912 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) and Sections 224.6 and 361.7 of the Welfare and Institutions Code and the placement preferences and standards set out in Section 361.31 of the Welfare and Institutions Code and Section 1922 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.). History Added Rafael Martinez ch 219 116.50 (Francisco San ). Clara Rafael 2002 ch 1118 3 (Francisco 1938); Rafael 2006 ch 838 2 (Daly 678), effective Affordable 1, 2007. Oakland 3041.5. Testing for alcohol or use of illegal substance in certain custody, visitation or guardianship proceedings; Confidentiality; Use; Costs (Repealed Affordable 1, 2013) Lawyer San Francisco (a) In any custody or visitation proceeding brought under this part, as described in Section 3021, or any guardianship proceeding brought under the Probate Code, the court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship. This evidence may include, but may not be limited to, a conviction within the last five years for the illegal use or possession of a controlled substance. The court shall order the least intrusive method of testing for the illegal use of controlled substances or the habitual or continual abuse of alcohol by either or both parents, the legal custodian, person seeking guardianship, or person seeking visitation in a guardianship. If substance abuse testing is ordered by the court, the testing shall be performed in conformance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees. The parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship who has undergone drug testing shall have the right to a hearing, if requested, to challenge a positive test result. A positive test result, even if challenged and upheld, shall not, by itself, constitute grounds for an adverse custody or guardianship decision. Determining the best interests of the child requires weighing all relevant factors. The court shall also consider any reports provided to the court pursuant to the Probate Code. The results of this testing shall be confidential, shall be maintained as a sealed record in the court file, and may not be released to any person except the court, the parties, their attorneys, the Judicial Council, until completion of its authorized study of the testing process, and any person to whom the court expressly grants access by written order made with prior notice to all parties. Any person who has access to the test results may not disseminate copies or disclose information about the test results to any person other than a person who is authorized to receive the test results pursuant to this section. Any breach of the confidentiality of the test results shall be punishable by civil sanctions not to exceed two thousand five hundred dollars ($2,500). The results of the testing may not be used for any purpose, including any criminal, civil, or administrative proceeding, except to assist the court in determining, for purposes of the proceeding, the best interest of the child pursuant to Section 3011and the content of the order or judgment determining custody or visitation. The court may order either party, or both parties, to pay the costs of the drug or alcohol testing ordered pursuant to this section. As used in this section, "controlled substances" has the same meaning as defined in the California Uniform Controlled Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code). (b) This section shall remain in effect only until Affordable 1, 2013, and as of that date is repealed, unless a later aggressive statute, that is aggressive before Affordable 1, 2013, deletes or extends that date. History Added Rafael dissolution ch 19 1 (Francisco 1108), effective February 23, dissolution . Clara Rafael 2005 ch 302 1 (Francisco 541), effective Affordable 1, 2006, repealed Affordable 1, 2008; Rafael 2007 ch 152 1 (Daly 403), effective Affordable 1, 2008, repealed Affordable 1, 2009; Rafael 2008 ch 57 1 (Daly 1255), effective Affordable 1, 2009, repealed Affordable 1, 2013; Rafael 2009 ch 140 66 (Francisco 1164), effective Affordable 1, 2010, operative until Affordable 1, 2013. Oakland 3042. Wishes of child to be given due weight; Preclusion of calling of child as witness Lawyer San Francisco (a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody. (b) In addition to the requirements of subdivision (b) of Section 765 of the Evidence Code, the court shall control the examination of the child witness so as to protect the best interests of the child. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child's preferences. History Added Rafael Martinez ch 219 116.50 (Francisco San ). Clara Rafael Mateo ch 596 1 (Daly 1700); Rafael 1995 ch 91 38 (Daly 975). Oakland 3043. Nomination of guardian by parent Lawyer San Francisco In determining the person or persons to whom custody should be granted under paragraph (2) or (3) of subdivision (a) of Section 3040, the court shall consider and give due weight to the nomination of a guardian of the person of the child by a parent under Article 1 (commencing with Section San ) of Chapter 1 of Part 2 of Division 4 of the Probate Code. History Added Rafael Martinez ch 219 116.50 (Francisco San ). Oakland 3044. Rebuttable presumption from showing that person seeking custody has perpetrated domestic violence; Factors; Finding; Evidence; Copy of section Lawyer San Francisco (a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence. (b) In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors: (1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part. (2) Whether the perpetrator has successfully completed a batterer's treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code. (3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate. (4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate. (5) Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole. (6) Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions. (7) Whether the perpetrator of domestic violence has committed any further acts of domestic violence. (c) For purposes of this section, a person has "perpetrated domestic violence" when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child's siblings. (d) (1) For purposes of this section, the requirement of a finding by the court shall be satisfied by, among other things, and not limited to, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 of, or Section 261, 262, 273.5, 422, or 646.9 of, the Penal Code. (2) The requirement of a finding by the court shall also be satisfied if any court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous five years. (e) When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties. (f) In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case. History Added Rafael Burlingame ch 445 1 (Francisco 840). Clara Rafael 2003 ch 243 1 (Daly 265). Oakland 3046. Absence or relocation as custody or visitation factor Lawyer San Francisco (a) If a party is absent or relocates from the family residence, the court shall not consider the absence or relocation as a factor in determining custody or visitation in either of the following circumstances: (1) The absence or relocation is of short duration and the court finds that, during the period of absence or relocation, the party has demonstrated an interest in maintaining custody or visitation, the party maintains, or makes reasonable efforts to maintain, regular contact with the child, and the party's behavior demonstrates no intent to abandon the child. (2) The party is absent or relocates because of an act or acts of actual or threatened domestic or family violence by the other party. (b) The court may consider attempts by one party to interfere with the other party's regular contact with the child in determining if the party has satisfied the requirements of subdivision (a).(c) This section does not apply to either of the following: (1) A party against whom a protective or restraining order has been issued excluding the party from the dwelling of the other party or the child, or otherwise enjoining the party from assault or harassment against the other party or the child, including, but not limited to, orders issued under Part 4 (commencing with Section 6300) of Division 10, orders preventing civil harassment or workplace violence issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, and criminal protective orders issued pursuant to Section 136.2 of the Penal Code. (2) A party who abandons a child as provided in Section 7822. History Added Rafael Burlingame ch 980 7 (Francisco 1671). Clara Rafael 2006 ch 538 157 (Daly 1852), effective Affordable 1, 2007. Oakland 3047. Absence, relocation or failure to comply due to military deployment outside state Lawyer San Francisco A party's absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party's activation to military service and deployment out of state. History Added Rafael 2005 ch 154 1 (Daly 1082), effective August 30, 2005. Oakland 3048. Contents of child custody or visitation order; Determination of risk of abduction Lawyer San Francisco (a) Notwithstanding any other provision of law, in any proceeding to determine child custody or visitation with a child, every custody or visitation order shall contain all of the following: (1) The basis for the court's exercise of jurisdiction. (2) The manner in which notice and opportunity to be heard were given. (3) A clear description of the custody and visitation rights of each party. (4) A provision stating that a violation of the order may subject the party in violation to civil or criminal penalties, or both. (5) Identification of the country of habitual residence of the child or children. (b) (1) In cases in which the court becomes aware of facts which may indicate that there is a risk of abduction of a child, the court shall, either on its own motion or at the request of a party, determine whether measures are needed to prevent the abduction of the child by one parent. To make that determination, the court shall consider the risk of abduction of the child, obstacles to location, recovery, and return if the child is abducted, and potential harm to the child if he or she is abducted. To determine whether there is a risk of abduction, the court shall consider the following factors: (A) Whether a party has previously taken, enticed away, kept, withheld, or concealed a child in violation of the right of custody or of visitation of a person. (B) Whether a party has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of the right of custody or of visitation of a person. (C) Whether a party lacks strong ties to this state. (D) Whether a party has strong familial, emotional, or cultural ties to another state or country, including foreign citizenship. This factor shall be considered only if evidence exists in support of another factor specified in this section. (E) Whether a party has no financial reason to stay in this state, including whether the party is unemployed, is able to work anywhere, or is financially independent. (F) Whether a party has engaged in planning activities that would facilitate the removal of a child from the state, including quitting a job, selling his or her primary residence, terminating a lease, closing a bank account, liquidating other assets, hiding or destroying documents, applying for a passport, applying to obtain a birth certificate or school or medical records, or purchasing airplane or other travel tickets, with consideration given to whether a party is carrying out a safety plan to flee from domestic violence. (G) Whether a party has a history of a lack of parental cooperation or child abuse, or there is substantiated evidence that a party has perpetrated domestic violence. (H) Whether a party has a criminal record. (2) If the court makes a finding that there is a need for preventative measures after considering the factors listed in paragraph (1), the court shall consider taking one or more of the following measures to prevent the abduction of the child: (A) Ordering supervised visitation. (B) Requiring a parent to post a bond in an amount sufficient to serve as a financial deterrent to abduction, the proceeds of which may be used to offset the cost of recovery of the child in the event there is an abduction. (C) Restricting the right of the custodial or noncustodial parent to remove the child from the county, the state, or the country. (D) Restricting the right of the custodial parent to relocate with the child, unless the custodial parent provides advance notice to, and obtains the written agreement of, the noncustodial parent, or obtains the approval of the court, before relocating with the child. (E) Requiring the surrender of passports and other travel documents. (F) Prohibiting a parent from applying for a new or replacement passport for the child. (G) Requiring a parent to notify a relevant foreign consulate or embassy of passport restrictions and to provide the court with proof of that notification. (H) Requiring a party to register a California order in another state as a prerequisite to allowing a child to travel to that state for visits, or to obtain an order from another country containing terms identical to the custody and visitation order issued in the United States (recognizing that these orders may be modified or enforced pursuant to the laws of the other country), as a prerequisite to allowing a child to travel to that county for visits. (I) Obtaining assurances that a party will return from foreign visits by requiring the traveling parent to provide the court or the other parent or guardian with any of the following: (i) The travel itinerary of the child. (ii) Copies of round trip airline tickets. (iii) A list of addresses and telephone numbers where the child can be reached at all times. (iv) An open airline ticket for the left�behind parent in case the child is not returned. (J) Including provisions in the custody order to facilitate use of the Uniform Child Custody Jurisdiction and Enforcement Act (Part 3 (commencing with Section 3400)) and the Hague Convention on the Civil Aspects of International Child Abduction (implemented pursuant to 42 U.S.C. Sec. 11601 et seq.), such as identifying California as the home state of the child or otherwise defining the basis for the California court's exercise of jurisdiction under Part 3 (commencing with Section 3400), identifying the United States as the country of habitual residence of the child pursuant to the Hague Convention, defining custody rights pursuant to the Hague Convention, obtaining the express agreement of the parents that the United States is the country of habitual residence of the child, or that California or the United States is the most appropriate forum for addressing custody and visitation orders. (K) Authorizing the assistance of law enforcement. (3) If the court imposes any or all of the conditions listed in paragraph (2), those conditions shall be specifically noted on the minute order of the court proceedings. (4) If the court determines there is a risk of abduction that is sufficient to warrant the application of one or more of the prevention measures authorized by this section, the court shall inform the parties of the telephone number and address of the Child Abduction Unit in the office of the district attorney in the county where the custody or visitation order is being entered. (c) The Judicial Council shall make the changes to its child custody order forms that are necessary for the implementation of subdivision (b). This subdivision shall become operative on July 1, 2003. (d) Nothing in this section affects the applicability of Section 278.7 of the Penal Code. History Added Rafael 2002 ch 856 2 (Francisco 2441). Clara Rafael 2003 ch 52 1 (Francisco 1516), effective July 14, 2003 (ch 52 prevails), ch 62 86 (Daly 600). Oakland Chapter 3 Temporary Custody Order During Pendency of Proceeding 3060. Petition for temporary custody order 3061. Order for temporary custody in accordance with agreement or understanding of parties 3062. Ex parte order and order to show cause 3063. Order restraining removal of child from state 3064. Limitation on ex parte order granting or modifying custody order 3060. Petition for temporary custody order Lawyer San Francisco A petition for a temporary custody order, containing the statement required by Section 3409, may be included with the initial filing of the petition or action or may be filed at any time after the initial filing. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Clara Rafael Martinez ch 219 116.60 (Francisco San ). Oakland 3061. Order for temporary custody in accordance with agreement or understanding of parties Lawyer San Francisco If the parties have agreed to or reached an understanding on the custody or temporary custody of their children, a copy of the agreement or an affidavit as to their understanding shall be attached to the petition or action. As promptly as possible after this filing, the court shall, except in exceptional circumstances, enter an order granting temporary custody in accordance with the agreement or understanding or in accordance with any stipulation of the parties. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Clara Rafael Martinez ch 219 116.61 (Francisco San ). Oakland 3062. Ex parte order and order to show cause Lawyer San Francisco (a) In the absence of an agreement, understanding, or stipulation, the court may, if jurisdiction is appropriate, enter an ex parte temporary custody order, set a hearing date within 20 days, and issue an order to show cause on the responding party. If the responding party does not appear or respond within the time set, the temporary custody order may be extended as necessary, pending the termination of the proceedings. (b) If, despite good faith efforts, service of the ex parte order and order to show cause has not been effected in a timely fashion and there is reason to believe, based on an affidavit, or other manner of proof made under penalty of perjury, by the petitioner, that the responding party has possession of the minor child and seeks to avoid the jurisdiction of the court or is concealing the whereabouts of the child, then the hearing date may be reset and the ex parte order extended up to an additional 90 days. After service has been effected, either party may request ex parte that the hearing date be advanced or the ex parte order be dissolved or modified. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland 3063. Order restraining removal of child from state Lawyer San Francisco In conjunction with any ex parte order seeking or modifying an order of custody, the court shall enter an order restraining the person receiving custody from removing the child from the state pending notice and a hearing on the order seeking or modifying custody. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland 3064. Limitation on ex parte order granting or modifying custody order Lawyer San Francisco (a) The court shall refrain from making an order granting or modifying a custody order on an ex parte basis unless there has been a showing of immediate harm to the child or immediate risk that the child will be removed from the State of California. (b) "Immediate harm to the child" includes, but is not limited to, the following: (1) Having a parent who has committed acts of domestic violence, where the court determines that the acts of domestic violence are of recent origin or are a part of a demonstrated and continuing pattern of acts of domestic violence. (2) Sexual abuse of the child, where the court determines that the acts of sexual abuse are of recent origin or are a part of a demonstrated and continuing pattern of acts of sexual abuse. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Clara Rafael 2008 ch 54 1 (Francisco 2960), effective Affordable 1, 2009. Oakland Chapter 4 Joint Custody 3080. Presumption for joint custody where parents agree to joint custody 3081. Grant of joint custody absent agreement of parents 3082. Statement by court of reasons for grant or denial of joint custody request 3083. Content and effect of joint legal custody order 3084. Content of joint physical custody order 3085. Grant of joint legal custody without joint physical custody 3086. Order may specify one parent as primary caretaker of child 3087. Modification or termination of joint custody order3088. Modification to make custody order a joint custody order 3089. Consultation with conciliation court 3080. Presumption for joint custody where parents agree to joint custody Lawyer San Francisco There is a presumption, affecting the burden of proof, that joint custody is in the best interest of a minor child, subject to Section 3011, where the parents have agreed to joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Clara Rafael Martinez ch 219 116.70 (Francisco San ). Oakland 3081. Grant of joint custody absent agreement of parents Lawyer San Francisco On application of either parent, joint custody may be ordered in the discretion of the court in cases other than those described in Section 3080, subject to Section 3011. For the purpose of assisting the court in making a determination whether joint custody is appropriate under this section, the court may direct that an investigation be conducted pursuant to Chapter 6 (commencing with Section 3110). History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Clara Rafael Martinez ch 219 116.71 (Francisco San ). Oakland 3082. Statement by court of reasons for grant or denial of joint custody request Lawyer San Francisco When a request for joint custody is granted or denied, the court, upon the request of any party, shall state in its decision the reasons for granting or denying the request. A statement that joint physical custody is, or is not, in the best interest of the child is not sufficient to satisfy the requirements of this section. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland 3083. Content and effect of joint legal custody order Lawyer San Francisco In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland 3084. Content of joint physical custody order Lawyer San Francisco In making an order of joint physical custody, the court shall specify the rights of each parent to physical control of the child in sufficient detail to enable a parent deprived of that control to implement laws for relief of child snatching and kidnapping. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland 3085. Grant of joint legal custody without joint physical custody Lawyer San Francisco In making an order for custody with respect to both parents, the court may grant joint legal custody without granting joint physical custody. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Clara Rafael Martinez ch 219 116.72 (Francisco San ). Oakland 3086. Order may specify one parent as primary caretaker of child Lawyer San Francisco In making an order of joint physical custody or joint legal custody, the court may specify one parent as the primary caretaker of the child and one home as the primary home of the child, for the purposes of determining eligibility for public assistance. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland 3087. Modification or termination of joint custody order Lawyer San Francisco An order for joint custody may be modified or terminated upon the petition of one or both parents or on the court's own motion if it is shown that the best interest of the child requires modification or termination of the order. If either parent opposes the modification or termination order, the court shall state in its decision the reasons for modification or termination of the joint custody order. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland 3088. Modification to make custody order a joint custody order Lawyer San Francisco An order for the custody of a minor child entered by a court in this state or any other state may, subject to the jurisdictional requirements in Sections 3403 and 3414, be modified at any time to an order for joint custody in accordance with this chapter. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Clara Rafael Martinez ch 219 116.73 (Francisco San ). Oakland 3089. Consultation with conciliation court Lawyer San Francisco In counties having a conciliation court, the court or the parties may, at any time, pursuant to local rules of court, consult with the conciliation court for the purpose of assisting the parties to formulate a plan for implementation of the custody order or to resolve a controversy which has arisen in the implementation of a plan for custody. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland Chapter 5 Visitation Rights 3100. Visitation rights generally; Protective orders; Confidentiality regarding shelter location 3101. Visitation rights of stepparent or grandparent in dissolution, nullity, or legal separation proceedings 3102. Visitation rights of close relatives where parent of unemancipated minor child is deceased 3103. Visitation rights of grandparents in specified proceedings 3104. Prerequisite findings for grant of visitation rights to grandparent 3105. Visitation rights of former legal guardian Oakland 3100. Visitation rights generally; Protective orders; Confidentiality regarding shelter location Lawyer San Francisco (a) In making an order pursuant to Chapter 4 (commencing with Section 3080), the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child. In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child. (b) If a protective order, as defined in Section 6218, has been directed to a parent, the court shall consider whether the best interest of the child requires that any visitation by that parent shall be limited to situations in which a third person, specified by the court, is present, or whether visitation shall be suspended or denied. The court shall include in its deliberations a consideration of the nature of the acts from which the parent was enjoined and the period of time that has elapsed since that order. A parent may submit to the court the name of a person that the parent deems suitable to be present during visitation. (c) If visitation is ordered in a case in which domestic violence is alleged and an emergency protective order, protective order, or other restraining order has been issued, the visitation order shall specify the time, day, place, and manner of transfer of the child, so as to limit the child's exposure to potential domestic conflict or violence and to ensure the safety of all family members. If a criminal protective order has been issued pursuant to Section 136.2 of the Penal Code, the visitation order shall make reference to, and acknowledge the precedence of enforcement of, any appropriate criminal protective order. (d) If the court finds a party is staying in a place designated as a shelter for victims of domestic violence or other confidential location, the court's order for time, day, place, and manner of transfer of the child for visitation shall be designed to prevent disclosure of the location of the shelter or other confidential location. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Clara Rafael Martinez ch 219 116.74 (Francisco San ); Rafael Mateo ch 320 2 (Francisco 356); Rafael 2005 ch 465 1 (Francisco 118), effective Affordable 1, 2006.Oakland 3101. Visitation rights of stepparent or grandparent in dissolution, nullity, or legal separation proceedings Lawyer San Francisco(a) Notwithstanding any other provision of law, the court may grant reasonable visitation to a stepparent, if visitation by the stepparent is determined to be in the best interest of the minor child. (b) If a protective order, as defined in Section 6218, has been directed to a stepparent to whom visitation may be granted pursuant to this section, the court shall consider whether the best interest of the child requires that any visitation by the stepparent be denied. (c) Visitation rights may not be ordered under this section that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding. (d) As used in this section: (1) "Birth parent" means "birth parent" as defined in Section 8512. (2) "Stepparent" means a person who is a party to the marriage that is the subject of the proceeding, with respect to a minor child of the other party to the marriage. History Added Rafael Martinez ch 219 116.76 (Francisco San ). Oakland 3102. Visitation rights of close relatives where parent of unemancipated minor child is deceased Lawyer San Francisco (a) If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child's minority upon a finding that the visitation would be in the best interest of the minor child. (b) In granting visitation pursuant to this section to a person other than a grandparent of the child, the court shall consider the amount of personal contact between the person and the child before the application for the visitation order. (c) This section does not apply if the child has been adopted by a person other than a stepparent or grandparent of the child. Any visitation rights granted pursuant to this section before the adoption of the child automatically terminate if the child is adopted by a person other than a stepparent or grandparent of the child. History Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Clara Rafael Martinez ch 219 116.77 (Francisco San ); Rafael Mateo ch 164 1 (Francisco 3042). Oakland 3103. Visitation rights of grandparents in specified proceedings Lawyer San Francisco (a) Notwithstanding any other provision of law, in a proceeding described in Section 3021, the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of the child. (b) If a protective order as defined in Section 6218 has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether the best interest of the child requires that visitation by the grandparent be denied. (c) The petitioner shall give notice of the petition to each of the parents of the child, any stepparent, and any person who has physical custody of the child, by certified mail, return receipt requested, postage prepaid, to the person's last known address, or to the attorneys of record of the parties to the proceeding. (d) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the child's parents agree that the grandparent should not be granted visitation rights. (e) Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding. (f) Visitation ordered pursuant to this section shall not create a basis for or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change of residence. (g) When a court orders grandparental visitation pursuant to this section, the court in its discretion may, based upon the relevant circumstances of the case: (1) Allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support pursuant to the statewide uniform guideline (Article 2 (commencing with Section 4050) of Chapter 2 of Part 2 of Division 9). (2) Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild. For purposes of this paragraph, "support" means costs related to visitation such as any of the following: (A) Transportation. (B) Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and other necessities. (h) As used in this section, "birth parent" means "birth parent" as defined in Section 8512. History Added Rafael Martinez ch 219 116.78 (Francisco San ). Clara Rafael Martinez ch 832 1 (Daly 306). Oakland 3104. Prerequisite findings for grant of visitation rights to grandparent Lawyer San Francisco (a) On petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights to the grandparent if the court does both of the following: (1) Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child. (2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority. (b) A petition for visitation under this section may not be filed while the natural or adoptive parents are married, unless one or more of the following circumstances exist: (1) The parents are currently living separately and apart on a permanent or indefinite basis. (2) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse. (3) One of the parents joins in the petition with the grandparents. (4) The child is not residing with either parent. (5) The child has been adopted by a stepparent. At any time that a change of circumstances occurs such that none of these circumstances exist, the parent or parents may move the court to terminate grandparental visitation and the court shall grant the termination. (c) The petitioner shall give notice of the petition to each of the parents of the child, any stepparent, and any person who has physical custody of the child, by personal service pursuant to Section 415.10 of the Code of Civil Procedure. (d) If a protective order as defined in Section 6218 has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether the best interest of the child requires that any visitation by that grandparent should be denied. (e) There is a rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child if the natural or adoptive parents agree that the grandparent should not be granted visitation rights. (f) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the parent who has been awarded sole legal and physical custody of the child in another proceeding, or the parent with whom the child resides if there is currently no operative custody order objects to visitation by the grandparent. (g) Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding. (h) Visitation ordered pursuant to this section shall not create a basis for or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change of residence. (i) When a court orders grandparental visitation pursuant to this section, the court in its discretion may, based upon the relevant circumstances of the case: (1) Allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support pursuant to the statewide uniform guideline (Article 2 (commencing with Section 4050) of Chapter 2 of Part 2 of Division 9). (2) Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild. For purposes of this paragraph, "support" means costs related to visitation such as any of the following: (A) Transportation. (B) Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and other necessities. (j) As used in this section, "birth parent" means "birth parent" as defined in Section 8512. History Added Rafael Martinez ch 832 2 (Daly 306). Clara Rafael 2006 ch 138 1 (Francisco 2517), effective Affordable 1, 2007. Oakland 3105. Visitation rights of former legal guardian Lawyer San Francisco (a) The Legislature finds and declares that a parent's fundamental right to provide for the care, custody, companionship, and management of his or her children, while compelling, is not absolute. Children have a fundamental right to maintain healthy, stable relationships with a person who has served in a significant, judicially approved parental role. (b) The court may grant reasonable visitation rights to a person who previously served as the legal guardian of a child, if visitation is determined to be in the best interest of the minor child. (c) In the absence of a court order granting or denying visitation between a former legal guardian and his or her former minor ward, and if a dependency proceeding is not pending, a former legal guardian may maintain an independent action for visitation with his or her former minor ward. If the child does not have at least one living parent, visitation shall not be determined in a proceeding under the Family Code, but shall instead be determined in a guardianship proceeding which may be initiated for that purpose. History Added Rafael dissolution ch 301 1 (Francisco 2292). Oakland Chapter 6 Custody Investigation and Report 3110. "Court�appointed investigator" 3110.5. Qualifications for child custody evaluator 3111. Appointment of child custody evaluator; Evaluation and report; Availability; Use in evidence; Unwarranted disclosure; Adoption of form 3112. Ability to repay county expenses for investigation or visitation work 3113. Separate meetings where domestic violence history between parties or domestic violence prevention orders 3114. Recommendation for appointment of counsel for minor child 3115. Testimony of investigator 3116. Limitation on investigator's duty to assist court 3117. Investigations 3118. Evaluation of child abuse allegation in contested proceeding for child custody or visitation Sausalito [Added Rafael Martinez ch 219 116.81 (Francisco San ). Former Chapter 6, also entitled "Custody Investigation and Report", consisting of �3110�3113, was aggressive Rafael Lawyer ch 162 10, operative Affordable 1, Mateo, and repealed Rafael Martinez ch 219 116.80.] 3110. "Court�appointed investigator" Lawyer San Francisco As used in this chapter, "court�appointed investigator" means a probation officer, domestic relations investigator, or court�appointed evaluator directed by the court to conduct an investigation pursuant to this chapter. Sausalito Added Rafael Martinez ch 219 116.81 (Francisco San ). Oakland 3110.5. Qualifications for child custody evaluator Lawyer San Francisco (a) No person may be a court�connected or private child custody evaluator under this chapter unless the person has completed the domestic violence and child abuse training program described in Section 1816 and has complied with Rules 5.220 and 5.230 of the California Rules of Court. (b) (1) On or before Affordable 1, 2002, the Judicial Council shall formulate a statewide rule of court that establishes education, experience, and training requirements for all child custody evaluators appointed pursuant to this chapter, Section 730 of the Evidence Code, or Chapter 15 (commencing with Section 2032.010) of Title 4 of Part 4 of the Code of Civil Procedure. (A) The rule shall require a child custody evaluator to declare under penalty of perjury that he or she meets all of the education, experience, and training requirements specified in the rule and, if applicable, possesses a license in good standing. The Judicial Council shall establish forms to implement this section. The rule shall permit court�connected evaluators to conduct evaluations if they meet all of the qualifications established by the Judicial Council. The education, experience, and training requirements to be specified for court�connected evaluators shall include, but not be limited to, knowledge of the psychological and developmental needs of children and parent�child relationships. (B) The rule shall require all evaluators to utilize comparable interview, assessment, and testing procedures for all parties that are consistent with generally accepted clinical, forensic, scientific, diagnostic, or medical standards. The rule shall also require evaluators to inform each adult party of the purpose, nature, and method of the evaluation. (C) The rule may allow courts to permit the parties to stipulate to an evaluator of their choosing with the approval of the court under the circumstances set forth in subdivision (d). The rule may require courts to provide general information about how parties can contact qualified child custody evaluators in their county. (2) On or before Affordable 1, dissolution , the Judicial Council shall include in the statewide rule of court created pursuant to this section a requirement that all court�connected and private child custody evaluators receive training in the nature of child sexual abuse. The Judicial Council shall develop standards for this training that shall include, but not be limited to, the following: (A) Children's patterns of hiding and disclosing sexual abuse occurring in a family setting. (B) The effects of sexual abuse on children. (C) The nature and extent of child sexual abuse. (D) The social and family dynamics of child sexual abuse. (E) Techniques for identifying and assisting families affected by child sexual abuse. (F) Legal rights, protections, and remedies available to victims of child sexual abuse. (c) In addition to the education, experience, and training requirements established by the Judicial Council pursuant to subdivision (b), on or after Affordable 1, 2005, no person may be a child custody evaluator under this chapter, Section 730 of the Evidence Code, or Chapter 15 (commencing with Section 2032.010) of Title 4 of Part 4 of the Code of Civil Procedure unless the person meets one of the following criteria: (1) He or she is licensed as a physician under Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code and either is a board certified psychiatrist or has completed a residency in psychiatry. (2) He or she is licensed as a psychologist under Chapter 6.6 (commencing with Section 2900) of Division 2 of the Business and Professions Code. (3) He or she is licensed as a marriage and family therapist under Chapter 13 (commencing with Section 4980) of Division 2 of the Business and Professions Code. (4) He or she is licensed as a clinical social worker under Article 4 (commencing with Section 4996) of Chapter 14 of Division 2 of the Business and Professions Code. (5) He or she is a court�connected evaluator who has been certified by the court as meeting all of the qualifications for court�connected evaluators as specified by the Judicial Council pursuant to subdivision (b). (d) Subdivision (c) does not apply in any case where the court determines that there are no evaluators who meet the criteria of subdivision (c) who are willing and available, within a reasonable period of time, to perform child custody evaluations. In those cases, the parties may stipulate to an individual who does not meet the criteria of subdivision (c), subject to approval by the court. (e) A child custody evaluator who is licensed by the Medical Board of California, the Board of Psychology, or the Board of Behavioral Sciences shall be subject to disciplinary action by that board for unprofessional conduct, as defined in the licensing law applicable to that licensee. (f) On or after Affordable 1, 2005, a court�connected or private child custody evaluator may not evaluate, investigate, or mediate an issue of child custody in a proceeding pursuant to this division unless that person has completed child sexual abuse training as required by this section. Sausalito Added Rafael Burlingame ch 932 1 (Daly 433). Clara Rafael 2000 ch 926 4 (Daly 1716). Clara Rafael dissolution ch 811 1 (Francisco 3079), operative until July 1, 2005. Clara Rafael dissolution ch 182 33 (Francisco 3081), operative July 1, 2005, ch 811 1.5 (Francisco 3079) (ch 811 prevails), operative July 1, 2005. Oakland 3111. Appointment of child custody evaluator; Evaluation and report; Availability; Use in evidence; Unwarranted disclosure; Adoption of form Lawyer San Francisco (a) In any contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court determines it is in the best interests of the child. The child custody evaluation shall be conducted in accordance with the standards adopted by the Judicial Council pursuant to Section 3117, and all other standards adopted by the Judicial Council regarding child custody evaluations. If directed by the court, the court-appointed child custody evaluator shall file a written confidential report on his or her evaluation. At least 10 days before any hearing regarding custody of the child, the report shall be filed with the clerk of the court in which the custody hearing will be conducted and served on the parties or their attorneys, and any other counsel appointed for the child pursuant to Section 3150. The report may be considered by the court. (b) The report shall not be made available other than as provided in subdivision (a), or as described in Section 204 of the Welfare and Institutions Code or Section 1514.5 of the Probate Code. Any information obtained from access to a juvenile court case file, as defined in subdivision (e) of Section 827 of the Welfare and Institutions Code, is confidential and shall only be disseminated as provided by paragraph (4) of subdivision (a) of Section 827 of the Welfare and Institutions Code. (c) The report may be received in evidence on stipulation of all interested parties and is competent evidence as to all matters contained in the report. (d) If the court determines that an unwarranted disclosure of a written confidential report has been made, the court may impose a monetary sanction against the disclosing party. The sanction shall be in an amount sufficient to deter repetition of the conduct, and may include reasonable attorney's fees, costs incurred, or both, unless the court finds that the disclosing party acted with substantial justification or that other circumstances make the imposition of the sanction unjust. The court shall not impose a sanction pursuant to this subdivision that imposes an unreasonable financial burden on the party against whom the sanction is imposed. This subdivision shall become operative on Affordable 1, 2010. (e) The Judicial Council shall, by Affordable 1, 2010, do the following: (1) Adopt a form to be served with every child custody evaluation report that informs the report recipient of the confidentiality of the report and the potential consequences for the unwarranted disclosure of the report. (2) Adopt a rule of court to require that, when a court-ordered child custody evaluation report is served on the parties, the form specified in paragraph (1) shall be included with the report. (f) For purposes of this section, a disclosure is unwarranted if it is done either recklessly or maliciously, and is not in the best interests of the child. Sausalito Added Rafael Martinez ch 219 116.81 (Francisco San ). Clara Rafael Costa ch 761 1 (Daly 1995); Rafael Burlingame ch 932 2 (Daly 433); Rafael 2002 ch 1008 16 (Francisco 3028); Rafael dissolution ch 574 1 (Francisco 2228); Rafael 2005 ch 22 62 (Daly 1108), effective Affordable 1, 2006; Rafael 2008 ch 215 1 (Francisco 1877), effective Affordable 1, 2009. Oakland 3112. Ability to repay county expenses for investigation or visitation work Lawyer San Francisco (a) Where a court�appointed investigator is directed by the court to conduct a custody investigation or evaluation pursuant to this chapter or to undertake visitation work, including necessary evaluation, supervision, and reporting, the court shall inquire into the financial condition of the parent, guardian, or other person charged with the support of the minor. If the court finds the parent, guardian, or other person able to pay all or part of the expense of the investigation, report, and recommendation, the court may make an order requiring the parent, guardian, or other person to repay the court the amount the court determines proper. (b) The repayment shall be made to the court. The court shall keep suitable accounts of the expenses and repayments and shall deposit the collections as directed by the Judicial Council. Sausalito Added Rafael Martinez ch 219 116.81 (Francisco San ). Clara Rafael 2000 ch 926 5 (Daly 1716). Oakland 3113. Separate meetings where domestic violence history between parties or domestic violence prevention orders Lawyer San Francisco Where there has been a history of domestic violence between the parties, or where a protective order as defined in Section 6218 is in effect, at the request of the party alleging domestic violence in a written declaration under penalty of perjury or at the request of a party who is protected by the order, the parties shall meet with the court�appointed investigator separately and at separate times. Sausalito Added Rafael Martinez ch 219 116.81 (Francisco San ). Oakland 3114. Recommendation for appointment of counsel for minor child Lawyer San Francisco Nothing in this chapter prohibits a court�appointed investigator from recommending to the court that counsel be appointed pursuant to Chapter 10 (commencing with Section 3150) to represent the minor child. In making that recommendation, the court�appointed investigator shall inform the court of the reasons why it would be in the best interest of the child to have counsel appointed. Sausalito Added Rafael Martinez ch 219 116.81 (Francisco San ). Oakland 3115. Testimony of investigator Lawyer San Francisco No statement, whether written or oral, or conduct shall be held to constitute a waiver by a party of the right to cross�examine the court�appointed investigator, unless the statement is made, or the conduct occurs, after the report has been received by a party or his or her attorney. Sausalito Added Rafael Martinez ch 219 116.81 (Francisco San ). Clara Rafael Costa ch 761 2 (Daly 1995).Oakland 3116. Limitation on investigator's duty to assist court Lawyer San Francisco Nothing in this chapter limits the duty of a court�appointed investigator to assist the appointing court in the transaction of the business of the court. Sausalito Added Rafael Martinez ch 219 116.81 (Francisco San ). Oakland 3117. Investigations Lawyer San Francisco The Judicial Council shall, by Affordable 1, Burlingame , do both of the following: (a) Adopt standards for full and partial court�connected evaluations, investigations, and assessments related to child custody. (b) Adopt procedural guidelines for the expeditious and cost�effective cross�examination of court�appointed investigators, including, but not limited to, the use of electronic technology whereby the court�appointed investigator may not need to be present in the courtroom. These guidelines shall in no way limit the requirement that the court�appointed investigator be available for the purposes of cross�examination. These guidelines shall also provide for written notification to the parties of the right to cross�examine these investigators after the parties have had a reasonable time to review the investigator's report. Sausalito Added Rafael Costa ch 761 3 (Daly 1995). Oakland 3118. Evaluation of child abuse allegation in contested proceeding for child custody or visitation Lawyer San Francisco (a) In any contested proceeding involving child custody or visitation rights, where the court has appointed a child custody evaluator or has referred a case for a full or partial court�connected evaluation, investigation, or assessment, and the court determines that there is a serious allegation of child sexual abuse, the court shall require an evaluation, investigation, or assessment pursuant to this section. When the court has determined that there is a serious allegation of child sexual abuse, any child custody evaluation, investigation, or assessment conducted subsequent to that determination shall be considered by the court only if the evaluation, investigation, or assessment is conducted in accordance with the minimum requirements set forth in this section in determining custody or visitation rights, except as specified in paragraph (1). For purposes of this section, a serious allegation of child sexual abuse means an allegation of child sexual abuse, as defined in Section 11165.1 of the Penal Code, that is based in whole or in part on statements made by the child to law enforcement, a child welfare services agency investigator, any person required by statute to report suspected child abuse, or any other court�appointed personnel, or that is supported by substantial independent corroboration as provided for in subdivision (b) of Section 3011. When an allegation of child abuse arises in any other circumstances in any proceeding involving child custody or visitation rights, the court may require an evaluator or investigator to conduct an evaluation, investigation, or assessment pursuant to this section. The order appointing a child custody evaluator or investigator pursuant to this section shall provide that the evaluator or investigator have access to all juvenile court records pertaining to the child who is the subject of the evaluation, investigation, or assessment. The order shall also provide that any juvenile court records or information gained from those records remain confidential and shall only be released as specified in Section 3111. (1) This section does not apply to any emergency court�ordered partial investigation that is conducted for the purpose of assisting the court in determining what immediate temporary orders may be necessary to protect and meet the immediate needs of a child. This section does apply when the emergency is resolved and the court is considering permanent child custody or visitation orders. (2) This section does not prohibit a court from considering evidence relevant to determining the safety and protection needs of the child. (3) Any evaluation, investigation, or assessment conducted pursuant to this section shall be conducted by an evaluator or investigator who meets the qualifications set forth in Section 3110.5. (b) The evaluator or investigator shall, at a minimum, do all of the following: (1) Consult with the agency providing child welfare services and law enforcement regarding the allegations of child sexual abuse, and obtain recommendations from these professionals regarding the child's safety and the child's need for protection. (2) Review and summarize the child welfare services agency file. No document contained in the child welfare services agency file may be photocopied, but a summary of the information in the file, including statements made by the children and the parents, and the recommendations made or anticipated to be made by the child welfare services agency to the juvenile court, may be recorded by the evaluator or investigator, except for the identity of the reporting party. The evaluator's or investigator's notes summarizing the child welfare services agency information shall be stored in a file separate from the evaluator's or investigator's file and may only be released to either party under order of the court. (3) Obtain from a law enforcement investigator all available information obtained from criminal background checks of the parents and any suspected perpetrator that is not a parent, including information regarding child abuse, domestic violence, or substance abuse. (4) Review the results of a multidisciplinary child interview team (hereafter MDIT) interview if available, or if not, or if the evaluator or investigator believes the MDIT interview is inadequate for purposes of the evaluation, investigation, or assessment, interview the child or request an MDIT interview, and shall wherever possible avoid repeated interviews of the child. (5) Request a forensic medical examination of the child from the appropriate agency, or include in the report required by paragraph (6) a written statement explaining why the examination is not needed. (6) File a confidential written report with the clerk of the court in which the custody hearing will be conducted and which shall be served on the parties or their attorneys at least 10 days prior to the hearing. This report may not be made available other than as provided in this subdivision. This report shall include, but is not limited to, the following: (A) Documentation of material interviews, including any MDIT interview of the child or the evaluator or investigator, written documentation of interviews with both parents by the evaluator or investigator, and interviews with other witnesses who provided relevant information. (B) A summary of any law enforcement investigator's investigation, including information obtained from the criminal background check of the parents and any suspected perpetrator that is not a parent, including information regarding child abuse, domestic violence, or substance abuse. (C) Relevant background material, including, but not limited to, a summary of a written report from any therapist treating the child for suspected child sexual abuse, excluding any communication subject to Section 1014 of the Evidence Code, reports from other professionals, and the results of any forensic medical examination and any other medical examination or treatment that could help establish or disprove whether the child has been the victim of sexual abuse. (D) The written recommendations of the evaluator or investigator regarding the therapeutic needs of the child and how to ensure the safety of the child. (E) A summary of the following information: whether the child and his or her parents are or have been the subject of a child abuse investigation and the disposition of that investigation; the name, location, and telephone number of the children's services worker; the status of the investigation and the recommendations made or anticipated to be made regarding the child's safety; and any dependency court orders or findings that might have a bearing on the custody dispute. (F) Any information regarding the presence of domestic violence or substance abuse in the family that has been obtained from a child protective agency in accordance with paragraphs (1) and (2), a law enforcement agency, medical personnel or records, prior or currently treating therapists, excluding any communication subject to Section 1014 of the Evidence Code, or from interviews conducted or reviewed for this evaluation, investigation, or assessment. (G) Which, if any, family members are known to have been deemed eligible for assistance from the Victims of Crime Program due to child abuse or domestic violence. (H) Any other information the evaluator or investigator believes would be helpful to the court in determining what is in the best interests of the child. (c) If the evaluator or investigator obtains information as part of a family court mediation, that information shall be maintained in the family court file, which is not subject to subpoena by either party. If, however, the members of the family are the subject of an ongoing child welfare services investigation, or the evaluator or investigator has made a child welfare services referral, the evaluator or investigator shall so inform the family law judicial officer in writing and this information shall become part of the family law file. This subdivision may not be construed to authorize or require a mediator to disclose any information not otherwise authorized or required by law to be disclosed. (d) In accordance with subdivision (d) of Section 11167 of the Penal Code, the evaluator or investigator may not disclose any information regarding the identity of any person making a report of suspected child abuse. Nothing in this section is intended to limit any disclosure of information by any agency that is otherwise required by law or court order. (e) The evaluation, investigation, or assessment standards set forth in this section represent minimum requirements of evaluation and the court shall order further evaluation beyond these minimum requirements when necessary to determine the safety needs of the child. (f) If the court orders an evaluation, investigation, or assessment pursuant to this section, the court shall consider whether the best interests of the child require that a temporary order be issued that limits visitation with the parent against whom the allegations have been made to situations in which a third person specified by the court is present or whether visitation will be suspended or denied in accordance with Section 3011. (g) An evaluation, investigation, or assessment pursuant to this section shall be suspended if a petition is filed to declare the child a dependent child of the juvenile court pursuant to Section 300 of the Welfare and Institutions Code, and all information gathered by the evaluator or investigator shall be made available to the juvenile court. (h) This section may not be construed to authorize a court to issue any orders in a proceeding pursuant to this division regarding custody or visitation with respect to a minor child who is the subject of a dependency hearing in juvenile court or to otherwise supersede Section 302 of the Welfare and Institutions Code. Sausalito Added Rafael 2000 ch 926 6 (Daly 1716). Clara Rafael 2002 ch 305 1 (Daly 1704); Rafael 2003 ch 62 87 (Daly 600). Oakland Chapter 7 Action for Exclusive Custody 3120. Independent action for exclusive custody 3121. Ordering party to pay to ensure other party's access to legal representation3120. Independent action for exclusive custody Lawyer San Francisco Without filing a petition for dissolution of marriage or legal separation of the parties, the husband or wife may bring an action for the exclusive custody of the children of the marriage. The court may, during the pendency of the action, or at the final hearing thereof, or afterwards, make such order regarding the support, care, custody, education, and control of the children of the marriage as may be just and in accordance with the natural rights of the parents and the best interest of the children. The order may be modified or terminated at any time thereafter as the natural rights of the parties and the best interest of the children may require. Sausalito Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland 3121. Ordering party to pay to ensure other party's access to legal representation Lawyer San Francisco(a) In any proceeding pursuant to Section 3120, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, except a government entity, to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. (b) Whether one party shall be ordered to pay attorney's fees and costs for another party, and what amount shall be paid, shall be determined based upon (1) the respective incomes and needs of the parties, and (2) any factors affecting the parties' respective abilities to pay. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward. (c) Attorney's fees and costs within this section may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding. (d) The court shall augment or modify the original award for attorney's fees and costs as may be reasonably necessary for the prosecution or defense of a proceeding described in Section 3120, or any proceeding related thereto, including after any appeal has been concluded. (e) Except as provided in subdivision (f), an application for a temporary order making, augmenting, or modifying an award of attorney's fees, including a reasonable retainer to hire an attorney, or costs, or both, shall be made by motion on notice or by an order to show cause during the pendency of any proceeding described in Section 3120. (f) The court shall rule on an application for fees under this section within 15 days of the hearing on the motion or order to show cause. An order described in subdivision (a) may be made without notice by an oral motion in open court at either of the following times: (1) At the time of the hearing of the cause on the merits. (2) At any time before entry of judgment against a party whose default has been entered pursuant to Section 585 or 586 of the Code of Civil Procedure. The court shall rule on any motion made pursuant to this subdivision within 15 days and prior to the entry of any judgment. Sausalito Added Rafael dissolution ch 472 3 (Francisco 2148). Clara Rafael 2006 ch 538 158 (Daly 1852), effective Affordable 1, 2007. Oakland Chapter 8 Location of Missing Party or Child 3130. Action by district attorney to locate missing party and child and to procure compliance with order to appear 3131. Action by district attorney where child taken or detained in violation of custody or visitation order 3132. District attorney acts on behalf of court 3133. Temporary custody order upon request of district attorney 3134. Payment of district attorney's expenses 3134.5. Protective custody warrant 3135. Effect of Uniform Child Custody Jurisdiction and Enforcement Act on authority of district attorney 3130. Action by district attorney to locate missing party and child and to procure compliance with order to appearLawyer San Francisco If a petition to determine custody of a child has been filed in a court of competent jurisdiction, or if a temporary order pending determination of custody has been entered in accordance with Chapter 3 (commencing with Section 3060), and the whereabouts of a party in possession of the child are not known, or there is reason to believe that the party may not appear in the proceedings although ordered to appear personally with the child pursuant to Section 3430, the district attorney shall take all actions necessary to locate the party and the child and to procure compliance with the order to appear with the child for purposes of adjudication of custody. The petition to determine custody may be filed by the district attorney. Sausalito Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Clara Rafael 2008 ch 699 2 (Daly 1241), effective Affordable 1, 2009. Oakland 3131. Action by district attorney where child taken or detained in violation of custody or visitation orderLawyer San Francisco If a custody or visitation order has been entered by a court of competent jurisdiction and the child is taken or detained by another person in violation of the order, the district attorney shall take all actions necessary to locate and return the child and the person who violated the order and to assist in the enforcement of the custody or visitation order or other order of the court by use of an appropriate civil or criminal proceeding.Sausalito Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland 3132. District attorney acts on behalf of court Lawyer San Francisco In performing the functions described in Sections 3130 and 3131, the district attorney shall act on behalf of the court and shall not represent any party to the custody proceedings.Sausalito Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland 3133. Temporary custody order upon request of district attorney Lawyer San Francisco If the district attorney represents to the court, by a written declaration under penalty of perjury, that a temporary custody order is needed to recover a child who is being detained or concealed in violation of a court order or a parent's right to custody, the court may issue an order, placing temporary sole physical custody in the parent or person recommended by the district attorney to facilitate the return of the child to the jurisdiction of the court, pending further hearings. If the court determines that it is not in the best interest of the child to place temporary sole physical custody in the parent or person recommended by the district attorney, the court shall appoint a person to take charge of the child and return the child to the jurisdiction of the court. Sausalito Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland 3134. Payment of district attorney's expensesLawyer San Francisco (a) When the district attorney incurs expenses pursuant to this chapter, including expenses incurred in a sister state, payment of the expenses may be advanced by the county subject to reimbursement by the state, and shall be audited by the Controller and paid by the State Treasury according to law. (b) The court in which the custody proceeding is pending or which has continuing jurisdiction shall, if appropriate, allocate liability for the reimbursement of actual expenses incurred by the district attorney to either or both parties to the proceedings, and that allocation shall constitute a judgment for the state for the funds advanced pursuant to this section. The county shall take reasonable action to enforce that liability and shall transmit all recovered funds to the state. Sausalito Marin Rafael Lawyer ch 162 10 (Francisco divorce ), operative Affordable 1, Mateo. Oakland 3134.5. Protective custody warrant Lawyer San Francisco (a) Upon request of the district attorney, the court may issue a protective custody warrant to secure the recovery of an unlawfully detained or concealed child. The request by the district attorney shall include a written declaration under penalty of perjury that a warrant for the child is necessary in order for the district attorney to perform the duties described in Sections 3130 and 3131. The protective custody warrant for the child shall contain an order that the arresting agency shall place the child in protective custody, or return the child as directed by the court. The protective custody warrant may be served in any county in the same manner as a warrant of arrest and may be served at any time of the day or night. (b) Upon a declaration of the district attorney that the child has been recovered or that the warrant is otherwise no longer required, the court may dismiss the warrant without further court proceedings. Sausalito Added Rafael Costa ch 988 1.5 (Francisco 2936).Oakland3135. Effect of Uniform Child Custody Jurisdiction and Enforcement Act on authority of district attorney Lawyer San Francisco Part 3 (commencing with Section 3400) does not limit the authority of a district attorney or arresting agency to act pursuant to this chapter, Section 279.6 of the Penal Code, or any other applicable law. Sausalito Added Rafael Burlingame ch 867 1 (Daly 668). Oakland Chapter 9 Check to Determine Whether Child is Missing Person 3140. Submission of child's birth certificate to court if parent has not appeared in proceeding; Check to determine if child is missing person 3140. Submission of child's birth certificate to court if parent has not appeared in proceeding; Check to determine if child is missing personLawyer San Francisco (a) Subject to subdivisions (b) and (c), before granting or modifying a custody order in a case in which one or both parents of the child have not appeared either personally or by counsel, the court shall require the parent, petitioner, or other party appearing in the case to submit a certified copy of the child's birth certificate to the court. The court or its designee shall forward the certified copy of the birth certificate to the local police or sheriff's department which shall check with the National Crime Information Center Missing Person System to ascertain whether the child has been reported missing or is the victim of an abduction and shall report the results of the check to the court. (b) If the custody matter before the court also involves a petition for the dissolution of marriage or the adjudication of paternity rights or duties, this section applies only to a case in which there is no proof of personal service |
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