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Recent Developments in Child Custody Law

Los Angeles Recent Developments in Child Custody Law Attorney

Move-away issues continue to dominate the field of custody and visitation cases in our court system. Family law attorneys are keeping their eyes on Marriage of LaMusga in the California Supreme Court, which has the potential for reshaping how we lawyers analyze move-away cases. In LaMusga, the trial court found that the children's move with their mother to the Midwest would be prejudicial to their welfare, and denied the move without a change of custody. The Court of Appeal saw the request for a custody time-share modification as a request for a change of custody because of the move. The Court held that "A history of disharmony and lack of cooperation between the parents does not permit the court to put aside the custodial parent's presumptive right to move as punishment for such behavior, as this court appeared to do." From the results of this case, family law practitioners encourage their clients to make a detailed record as to the ways the child's development has been affected by parental conflict and/or alienation and whether, based on the child's history, the planned move will be detrimental to the welfare of the child.

The Second Appellate District did rule in Marriage of Rose and Richardson (2002) 102 Cal.App.4th 941 that the holding in Montenegro v. Diaz (2001) 26 Cal.4th 249 applies to a stipulated judgment in a move-away case. In Richardson, the Court of Appeal found that there was no clear and affirmative indication that the parties intended that their stipulation which resulted in a Judgment of Dissolution was to be a final judicial determination of custody, which would have required the father to present evidence that there had been a significant change of circumstances to justify modifying the custody order, as is the law per Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444; 913 P.2d 473. Thus the decision in the Rose and Richardson case cut back the force and impact of Burgess, a small boone to the non-moving parent.

Move-away cases get to court usually because of another issue besides the move. Maybe the parent is accused of alienating the child or children. Maybe there is an allegation of a dangerous destination. Perhaps the child is pre-verbal or a special needs child. Often there are bi-cultural and religious issues to contend with or blended families issues. Interstate and international custody law is a revolving door of chaos, complexity, cost and concern. Cooper-Gordon LLP has taken pride in its approach and success in such diverse, developing and difficult cases for quite a number of years.

On the subject of grandparent visitation, a recent Court of Appeal decision applied the United States Supreme court holding in Troxel v. Granville (2000) 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49, to siblings desirous of visitation after the death of their sibling-parent over the objection of the remaining parent and denied such visitation absent a finding of unfitness on the part of the parent. This was the case of Herbst v. Swan (2002 2d District, Div. 4) 102 Cal.App.4th 813. The Court of Appeal there concluded that Family Code Section 3102 as applied to the facts of this case unconstitutionally infringed upon the parent's liberty interest. Those who seek nonparent visitation clearly have an uphill battle and will need to make a strong and detailed argument as to the psychological impact of the loss of the relationship on the child.

Another interesting decision was provided in Marriage of Dunn-Kato & Dunn (Oct. 30, 2002) 103 Cal. App.4th 345. There, the Court of Appeal reversed a trial court decision barring the stepmother from volunteering at school, church and other activities where she had a leadership role during the mother's parenting because the decision was made in chambers, outside of the presence of the parties. This case needed therapeutic intervention, since it was obviously more about the two women's parental identities than about a parenting plan.

Last, but not least, 2002 left us with the outrageous case of Marriage of Norviel (2002) 102 Cal.App.4th 1152, which held that married couples are not separated for purposes of community property law unless they live in separate residence. We need not go into the wide range of negative impacts of this case on the people we serve. We are sure to find future efforts to overturn this precedent.

It is important for the litigant to consider what factors are important in developing and sustaining meaningful parent-child relationships. Our lawyers can help raise the points of concern and provide referrals to resources to help obtain the client's goals.