1. ESTABLISHING OR MODIFYING CHILD CUSTODY OR VISITATION ORDERS FAMILY LAW FACILITATOR SANTA BARBARA COUNTY SUPERIOR COURT

2. GOAL: To understand what is custody and visitationTo understand what is custody and visitation To understand what the court looks at in making ordersTo understand what the court looks at in making orders To understand how such orders can be changedTo understand how such orders can be changed

3. WHAT IS CUSTODY? Custody refers to who has responsibilityCustody refers to who has responsibility 2 types:2 types: –Physical custody –Legal custody

4. PHYSICAL CUSTODY: Who is responsible for the child on the day-to-day level?Who is responsible for the child on the day-to-day level? Based on how much time the child spends with each parentBased on how much time the child spends with each parent Determines where the child will liveDetermines where the child will live

5. PHYSICAL CUSTODY: Joint: Each parent has significant periods of physical custodyJoint: Each parent has significant periods of physical custody –Does not need to be 50:50 to be joint Sole: The child lives with and is under the supervision of one parent and the other parent has visitationSole: The child lives with and is under the supervision of one parent and the other parent has visitation

6. VISITATION: Times when non-custodial parent has the children and is fully responsible for them Ex.: Every other weekend and one evening during the weekEx.: Every other weekend and one evening during the week Supervised visitation means that a neutral third party is present during visitation:Supervised visitation means that a neutral third party is present during visitation: –Done by court order –Due to drug, alcohol or physical abuse; mental health problems; or long period of no contact with children

7. LEGAL CUSTODY: Who is responsible for making important decisions regarding the childrens health, education and welfare:Who is responsible for making important decisions regarding the childrens health, education and welfare: –Ex.: What kind of treatment will the child get for a medical condition? –Ex.: Where will the child go to school? –Ex.: What religion, if any?

8. LEGAL CUSTODY: JOINT: Both parents share the right and responsibility to make the decisions about the childs health, education and welfareJOINT: Both parents share the right and responsibility to make the decisions about the childs health, education and welfare –Success depends on communication and cooperation SOLE: One parent has the sole right and responsibility to make the decisionsSOLE: One parent has the sole right and responsibility to make the decisions

9. GOAL OF CUSTODY AND VISITATION ORDER: To create a parenting plan that is in the best interest of your children:To create a parenting plan that is in the best interest of your children: –Looking at your childs basic needs –Looking at your childs age, personality, experiences and abilities –Looking at the nature and amount of contact with each parent –Providing frequent and consistent time with each parent –Providing a clear statement of parenting times and responsibilities

10. CUSTODY AND DOMESTIC VIOLENCE Rebuttable presumption against custody to domestic violence perpetratorRebuttable presumption against custody to domestic violence perpetrator Violence within the past 5 yearsViolence within the past 5 years Sole or joint physical or legal custody to the perp would be detrimental to the childs best interest (Fam. C. §3044.)Sole or joint physical or legal custody to the perp would be detrimental to the childs best interest (Fam. C. §3044.)

11. DRUG OR ALCOHOL TESTING: CUSTODY & VISITATION ORDERS: Court can order testing if preponderance of evidence shows habitual, frequent, or continual useCourt can order testing if preponderance of evidence shows habitual, frequent, or continual use Can consider prior convictions in past 5 yearsCan consider prior convictions in past 5 years Test results are confidential & may be used only in custody/visitation hearingTest results are confidential & may be used only in custody/visitation hearing Positive test alone does not determine custody (Fam. C. §3041.5)Positive test alone does not determine custody (Fam. C. §3041.5)

12. HOW TO GET YOUR FIRST CUSTODY ORDER: Create a voluntary agreement by yourselves or through mediation that is signed by a judge, orCreate a voluntary agreement by yourselves or through mediation that is signed by a judge, or Go to court and have a judge decide the custody/visitation issuesGo to court and have a judge decide the custody/visitation issues Either way needs to be based on the best interest of the childEither way needs to be based on the best interest of the child

13. FAMILY CUSTODY SERVICES MEDIATION: Free service through the court when you have a court caseFree service through the court when you have a court case Uses neutral 3 rd person to help you and the other parent resolve custody/visitation problemsUses neutral 3 rd person to help you and the other parent resolve custody/visitation problems

14. FAMILY CUSTODY SERVICES MEDIATION: Goals:Goals: –To help communication between the parties –To develop a parenting plan agreement that gives both parents close and continuing contact or other other levels of contact with the children, according to what is in the best interest of the child

15. HOW FCS MEDIATION WORKS: You, the other parent and each child over 5 years old speaks individually with the mediatorYou, the other parent and each child over 5 years old speaks individually with the mediator You and the other parent then meet together with mediatorYou and the other parent then meet together with mediator Agreement? Its put in writing, parties sign, then its ordered by the courtAgreement? Its put in writing, parties sign, then its ordered by the court No agreement? Youll need to go to court for the judge to make an orderNo agreement? Youll need to go to court for the judge to make an order

16. CHANGING A CUSTODY ORDER: Temporary orders (made by stipulation or agreement): Can be changed at any time by looking at the best interest of the childTemporary orders (made by stipulation or agreement): Can be changed at any time by looking at the best interest of the child Permanent/final judicial custody determinations: Can be changed only if the court first finds a change of circumstances now existsPermanent/final judicial custody determinations: Can be changed only if the court first finds a change of circumstances now exists

17. PERMANENT OR FINAL CUSTODY ORDER: Can be the result of the courts decision following hearing on the merits, orCan be the result of the courts decision following hearing on the merits, or Can be based on an agreement between the parties (stipulation) if its shown in writing and by actions that the parties have clearly & affirmatively intended a permanent and final resultCan be based on an agreement between the parties (stipulation) if its shown in writing and by actions that the parties have clearly & affirmatively intended a permanent and final result

18. IF THE ORDER IS PERMANENT: YOU NEED TO SHOW A CHANGE IN CIRCUMSTANCES: You first must prove a material change in circumstances to the judge: How significant facts are different from when the court last decided the custody issueYou first must prove a material change in circumstances to the judge: How significant facts are different from when the court last decided the custody issue If you cant prove this: The court will not hear your caseIf you cant prove this: The court will not hear your case

19. EXAMPLES OF CHANGE OF CIRCUMSTANCES: New unfit parentingNew unfit parenting New abuseNew abuse Frustration of visitation/parental alienation (courts cant agree)Frustration of visitation/parental alienation (courts cant agree) One parent moving away?One parent moving away?

20. MOVING AWAY: JOINT PHYSICAL CUSTODY CASE: Court will use best interest of child testCourt will use best interest of child test Moving parent needs to give adequate notice of intention to move awayMoving parent needs to give adequate notice of intention to move away Both parents need to be able to do mediation prior to move-awayBoth parents need to be able to do mediation prior to move-away Both parents need to have opportunity for formal custody evaluationBoth parents need to have opportunity for formal custody evaluation

21. MOVING AWAY: Parent with SOLE PHYSICAL CUSTODY: Rebuttable presumption: Primary custodial parent has the right to move with the childrenRebuttable presumption: Primary custodial parent has the right to move with the children To stop the childrens move, left-behind parent must show that the move would cause detriment to the childrenTo stop the childrens move, left-behind parent must show that the move would cause detriment to the children

22. FACTORS TO CONSIDER AS POSSIBLE DETRIMENT: Childs need for stability and continuityChilds need for stability and continuity Distance of the moveDistance of the move Childrens ages & community tiesChildrens ages & community ties Childrens relationships with both parentsChildrens relationships with both parents Quality of relationship between parentsQuality of relationship between parents Childrens wishes (sufficient age & capacity)Childrens wishes (sufficient age & capacity) Reasons for the moveReasons for the move Scope of shared parentingScope of shared parenting

23. DETRIMENT : Ex.: Impact of the move away on the left- behind parents relationship with the children (10; 100; 1000; 10,000 miles away)Ex.: Impact of the move away on the left- behind parents relationship with the children (10; 100; 1000; 10,000 miles away) Ex.: Senior in high schoolEx.: Senior in high school Ex.: Developmentally disabled childEx.: Developmentally disabled child Ex.: Child with special medical needsEx.: Child with special medical needs

24. IF DETRIMENT IS FOUND… The court can then look at all the relevant factors to determine if a change of custody is in the childs best interestsThe court can then look at all the relevant factors to determine if a change of custody is in the childs best interests Its nevertheless very hard to overcome the custodial parents presumptive right to moveIts nevertheless very hard to overcome the custodial parents presumptive right to move

25. CHANGE IN VISITATION: Do not need to show a change in circumstancesDo not need to show a change in circumstances Can always ask the court to make minor changes in the parenting scheduleCan always ask the court to make minor changes in the parenting schedule New plan needs to be in childs best interestsNew plan needs to be in childs best interests

26. TO ESTABLISH OR MODIFY CUSTODY OR VISITATION: –YOU NEED TO: –Have or open a court case in Santa Barbara –Attend the Children in the Middle parenting class –Attend Family Custody Services mediation Sign an agreement, orSign an agreement, or –File papers to get a hearing in court

27. NEEDED COURT PAPERS: NEEDED COURT PAPERS: Notice of Motion or Order to Show CauseNotice of Motion or Order to Show Cause Application for OrderApplication for Order DeclarationDeclaration Notice of F. C. S. MediationNotice of F. C. S. Mediation Notice of Required Attendance at Children in the MiddleNotice of Required Attendance at Children in the Middle

28. OTHER REQUIREMENTS: Type your legal papersType your legal papers File the proper documentsFile the proper documents Pay your filing fee or get a fee waiverPay your filing fee or get a fee waiver Get the other party properly servedGet the other party properly served

29. FINAL STEPS: Attend the Children in the Middle parenting classAttend the Children in the Middle parenting class Attend Family Custody Services mediationAttend Family Custody Services mediation –Sign an agreement, or Go to courtGo to court

30. FAMILY LAW FACILITATOR: Can help with legal papersCan help with legal papers Can help with serviceCan help with service Can help with filingCan help with filing Does not go to court with youDoes not go to court with you Does not represent youDoes not represent you

31. SO LETS GET TO WORK!