CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed.

CALIFORNIA FAMILY LAW FOR PARALEGALS, 5th Ed. Chapter Four Child Visitation

A. CHILD VISITATION • Family Code section 3100 mandates that whenever a custody order pertinent to section 3080 is made, “the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation will be detrimental to the best interests of the child.” • Assuming that visitation is not detrimental to the best interests of the child, then the noncustodial parent will be allowed such visitation as is deemed to be “reasonable” under all the circumstances, keeping in mind that the Code mandates as much contact with both parents as is reasonably practical.

B. VISITATION PLANS • In keeping with the concept of reasonable visitation, the fundamental requirement is the instruction of Family Code section 3020 that the children maintain “frequent and continuing contact” with both parents. • The ideal is for a 50/50 split of time. • However to the extent that this would interfere in the child’s development or schooling, or provide similar obstacles to establishing stability and continuity in the child’s life, the goal of a 50/50 split is not artificially imposed for the sake of achieving mathematical equality of time. • See Freeman order on page 120.

B. VISITATION PLANS • This plan works out so that the noncustodial parent has the child approximately 20 percent of the time. • This schedule of visitation is not carved in stone, however, and the parties and the court have great flexibility in working with this schedule as an initial framework in arriving at an ultimately workable (and reasonable) visitation schedule.

C. VISITATION RESTRICTIONS • There are a variety of circumstances in which a restriction can and should be placed on visitation, ranging from financial misconduct to domestic violence. • The party seeking to restrict visitation has the burden of proof on this point, and visitation will not be restricted or denied absent finding of good cause. • See Marriage of Economou on page 122.

D. INTERFERENCE WITH CUSTODY AND VISITATION • If the child is a teenager or poses some other actual physical impediment to the custodial parent’s ability to exercise sufficient control over that child to ensure that visitation in fact goes as scheduled, then the custodial parent will generally not be held accountable for the child’s failure and refusal to visit. • On the other hand, if it is a relatively small child, one over whom the custodial parent continues to exercise substantial control, then the custodial parent will not escape liability for the failure and refusal to permit the visitation.

D. INTERFERENCE WITH CUSTODY AND VISITATION • In fact, a custodial parent who refuses visitation when the minor child is otherwise inclined to visit runs a very serious risk of losing custody of that child inasmuch as it is the express policy of the legislature to place physical custody of the minor child with the parent who is more likely to allow the visitation to take place.

E. RELOCATION • When faced with the relocating custodial parent, the court generally will require that parent to give the other parent a minimum amount of notice prior to the anticipated move. • This notice gives the noncustodial parent an opportunity to go to court and seek orders restraining the relocation of their child. • This concept is codified in Family Code section 3024, which provides that: see pages 124 and 125. • See “move away” cases pages 125 to 141.

E. RELOCATION • After La Musga, the primary focus shall be on the child; not the parents, not the motivation for their move, not their good faith or bad faith, but on the child. • The court recognizes that the burden of proof is on the parent who opposes the relocation to show that the move is not in the child’s best interests, but they also granted the trial court great discretion in its ultimate rulings. • The moving party need not prove necessity for the move either.

F. REMEDIES FOR FRUSTRATION OF VISITATION • A variety of remedies are available to provide relief to the noncustodial parent who is in the unhappy position of having his visitation rights frustrated. • For example, the noncustodial parent can commence an order to show cause concerning contempt in an attempt to have the court levy a monetary fine against the custodial parent if not imprison him altogether for violating the court’s order pertinent to visitation.

F. REMEDIES FOR FRUSTRATION OF VISITATION • Another alternative the noncustodial parent could use is to ask the court to order the custodial parent to post a monetary bond to secure performance and compliance with the visitation orders. • Such a request will generally not be granted the first time that the parties find themselves in court on this issue. • Usually, the noncustodial parent must demonstrate a history of frustration of visitation before the court will require the custodial parent to post such a bond.

F. REMEDIES FOR FRUSTRATION OF VISITATION • Unjustified interference with visitation, no matter how deliberate, malicious, or motivated by simple evil intent by the custodial parent, will not excuse the withholding of payment of child support by the noncustodial parent. • It is not a defense to an action for enforcement for nonpayment of child support and can provide no basis for modification or termination of child support.

F. REMEDIES FOR FRUSTRATION OF VISITATION • Additional remedies to a parent whose visitation is being frustrated can include a general civil lawsuit for emotional distress, a lawsuit charging interference with the relationship between the parent and the child, and other torts of a similar nature. • Sometimes it is the other way around, and it is the noncustodial parent who is refusing to visit. • There is simply no authority, either in the Code or as defined by cases, that allows it to force an unwilling parent to visit with a child.

G. NONPARENT ACCESS TO CHILDREN • Nonparent access to children has been dramatically impacted by recent court decisions, most notably the U.S. Supreme Court decision in Troxel v. Granville. • Troxel involved the right of a natural parent to keep everybody else out of the affairs of their children. • The U.S. Supreme Court found significant problems with a Washington statute: The statute was breathtakingly overbroad because it authorized any person at any time to petition for visitation. • The statute was simply found to be unconstitutional and stricken.

G. NONPARENT ACCESS TO CHILDREN • Post-Troxel, then, any statute that creates a right adverse to the desires of the parent will probably have to have the following elements to survive a constitutional challenge: see pages 147 and 148. • In light of Troxel, several California statutes have been held to be unconstitutional. • They are as follows: see page 148. • Section 3103 has not yet been held to be unconstitutional, but that could be as much a matter of lack of current opportunity as it could be the statutory construction.

G. NONPARENT ACCESS TO CHILDREN • Family Code sections 3100 establishes the discretion of the court to allow reasonable visitation rights to a nonparent, provided simply that such nonparent has “an interest in the welfare of the child.” • This is entirely discretionary on the part of the court. • This subject of “nonparent” visitation can be divided into three basic areas: grandparents, stepparents, and nonparents. • The state of the law in this area is presently in a state of flux, however, with decisions affecting the constitutionality of this statutory scheme being decided even as this book goes to print.

1. GRANDPARENT VISITATION • The court may grant grandparents reasonable visitation if it finds that to be in the best interests of the child. • If the child’s parents agree that the grandparent should not be granted visitation rights, then there is a presumption that grandparent visitation is not in the best interests of the minor child.

2. STEPPARENT VISITATION • Family Code 3101 provides as follows in the context of stepparent visitation: see page 151. • 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.

3. OTHER VISITATION • California, since 1994, has had legislation in place that acted as a “catchall” section, addressing everybody else who desires, but nevertheless might not otherwise be entitled to, visitation. • Family Code section 3102 provided as follows: see page 152. • If either parent of an unemancipated minor 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.

4. CURRENT STATE OF THE LAW • In California, that statutory scheme presented by Family Code sections 3100 through 3104 are now at risk for being held unconstitutional. • Section 3100, granting visitation rights to (essentially) “any person,” is very similar to the Washington law and will most likely be struck down. • Section 3101, addressing stepparent visitation with a best interest of the child standard of review, also probably violates Troxel. • Section 3102, addressing relatives of a deceased parent, is even more removed and has been ruled unconstitutional.

CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed.