Articles Posted in Custody and Visitation


Part one of this blog introduced the American Academy of Matrimonial Lawyers (“AAML”) and the AAML’s new publication addressing the division of parenting time for families going through divorce or separation, titled Child Centered Residential Guidelines (“AAML Guidelines”). Here we will delve into an examination of the publication and summarize the AAML Guidelines.

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If you are considering a divorce or are already involved in the divorce process, you have likely done some research and been left scratching your head in bewilderment. Divorce is so common these days that you may assume it’s easy to do. Unfortunately, however, it’s not the most “user friendly” process. This is especially so in California, where the judicial forms, statutes, cases, and court rules that together form our laws are wrought with nuances and deadlines that even the most intelligent person in the world is apt to miss without the proper legal training.

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In my last blog I talked about how a custody evaluation is ordered, what it costs, and how long it takes. If you have not read that blog, it may be helpful to go back and take a look before you continue. If you prefer to get right into the trenches, then continue on.

Read the Blog: What is a Custody Evaluation (Part 1)

The first question everyone asks me when the court orders a custody evaluation is…”What is a custody evaluation?”

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In earlier blogs I discussed what a parent can expect during child custody mediation, both private mediation and court connected mediation. Both scenarios, while nuanced, are quite straight forward. What happens if you are involved in a high-conflict child custody case and the court orders a custody evaluation? What does the evaluation cost? And how long do they take? I hope to answer these questions in this blog. In my next blog, I will discuss what to expect from a custody evaluation, how you can prepare and some of the reason a court will order a custody evaluation.

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In an earlier blog I discussed what to expect from court connected child custody mediation (Family Court Services – “FCS”). If you have not read that blog yet, go back and take a look since I give a background on child custody mediation generally. In today’s blog, I am going to focus on private child custody mediation.

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Child-custody-mediationThe focus of this blog is parents involved in contested custody cases and required custody mediation. Contested custody cases come in all shapes and sizes. On one end of the spectrum you have the high-conflict custody cases (the knockdown, drag out fights) and on the other end you have the “we agree on most things, but there are some details that we still need to iron out.”

No matter where on the spectrum your case falls, if you and the other parent cannot reach a full agreement on custody issues, you will be required to attend child custody mediation. Under California law [Family Code §3170], any contested issue related to custody and visitation must be set for mediation.

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Earlier this week, we discussed the basics of how the UCCJEA determines which states get to make custody and visitation orders over children. We did not discuss the more appropriate forum exceptions of Family Code sections 3427 and 3428. These are discussed below.

As noted before, there are 4 types of jurisdiction under the UCCJEA: (1) Initial jurisdiction (2) Continuing, Exclusive Jurisdiction (3) Modification Jurisdiction and (4) Emergency Jurisdiction.

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There was a time before 2010 when you could go to Mexico for a few days and all that was required to return was a valid U.S. ID or a birth certificate. That changed in 2010 when the immigration regulations changed and a valid passport was required for all citizens, including children. There are certain exceptions which are not relevant to this blog, but that can be reviewed at U.S. Department of State.

Living in San Diego, travel to Mexico is a regular activity for many families. Whether it is to visit family still living in Mexico, for medical care, or just for pleasure travel, the draw of the beautiful beaches and fresh seafood is very strong.

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At this point almost all of America has seen the video of the adorable 6 year girl talking to her mother about divorce. (If you have not seen it yet, take a few minutes and watch it HERE.) With advice such as “Don’t be a Meanie, be a friend” and lines like, “What if there is just a little bit of persons and we eat them? Then no one will ever be here. Only the monsters in our place. We need everyone to be a person” the viewers can’t help but stop and take notice – plus this wisdom is coming from a little girl so sweet you want to eat her…but in a figurative way of course.

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We live an increasingly mobile society, so it’s not unusual for families to find themselves in different parts of the country for a multitude of reasons. So, how is it decided which state gets to make custody and visitation orders over the children in these situations?

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is a common body of rules adopted by every single state (except Massachusetts). A quick glance at the UCCJEA will quickly resolve the overwhelming majority of these questions. For the purposes of this blog post, the rarely used more appropriate forum exceptions will not be discussed.

There are 4 types of jurisdiction under the UCCJEA: (1) Initial jurisdiction (2) Continuing, Exclusive Jurisdiction (3) Modification Jurisdiction and (4) Emergency Jurisdiction.

uccjea-jurisdiction.jpgInitial jurisdiction is described in Family Code section 3421. California has jurisdiction to make an initial child custody determination if California “is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.” The “home state” is defined as the “state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned” by Family Code section 3402.

So if the child was in California for the six months before the first child custody proceeding was commenced, California could assume jurisdiction.

Once California has jurisdiction over the child, under what circumstances does California cede jurisdiction to another state? Under Family Code section 3422, California has continuing, exclusive jurisdiction to make orders over a child unless:

“(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships. (2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state. ..”

The language of this statute can be intimidating, but it can be boiled down to the following rules of thumb:

1. California will continue to have jurisdiction to make custody and visitation orders if at least one parent remains in California and that parent continues to exercise visitation rights with the child (even if the child lives in another state). This is pursuant to Kumar v. Superior Court.
2. If the neither of the parents nor the child live in California anymore, California no longer has jurisdiction to make orders.

When can California assume jurisdiction and modify a child custody order from another state? Pursuant to Family Code section 3423, California cannot modify another state’s order unless it would have jurisdiction under Family Codes section 3421 AND either of the following circumstances exist:

“(a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 3422 …
(b) A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.”

In other words, if the child has been in California for six months and neither the parents nor the children continue to reside in the state that originally made the last custody order, California can exercise jurisdiction over the child.

Finally, we get to Family Code section 3424, temporary emergency jurisdiction. Temporary emergency jurisdiction trumps all the other rules. California always has jurisdiction if the child is “present in the state and has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse.” This is so, even if California would not otherwise have jurisdiction under Family Code sections 3421, 3422, or 3423.
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