CUSTODY AND VISITATION:
 LAW ON CUSTODY
AND VISITATION:
If you or someone you know has been the victim of
Domestic Violence, before you go any further into this section, please take a
moment to visit the
"New Family Laws" page. There you will find that the legislature has,
once again,
made significant changes to the law concerning Custody and Visitation. If you or
know someone who has been a victim of or is accused of domestic violence, please make sure that
they become aware of the New Family Code Section §3044.
What I first believed might be a solution to the issue of domestic violence, has
been misused by some litigants to gain an advantage against the other parent. Since this law was enacted, we have begun to see this section
inappropriately applied rather indiscriminately with little regard for the truth
of the allegations. Once again I must warn people that any law can be
abused. It is up to each of you to see that abuse doesn't occur. Remember that
under the Family Code false allegations of abuse can be used against you in
seeking custody and visitation.
This section was designed to protect victims of domestic violence and not to be
used as a tool for someone to gain an advantage over the other party where there
are really no facts of violence or abuse. We will have to watch how the Courts
interpret and implement this law during the next few years. If this disturbing
trend continues, the legislature may have to rein this section in. That being
said now lets explore the rest of the subject.
Perception of Prejudice Against Fathers Having Custody:
Many fathers feel that there is a bias in the family
law arena in favor of the mothers. The reality is that they are somewhat
correct. While our office represents both men and women without a bias for
or against either sex, we have noticed a few things that men should be aware of:
- Mothers occupy a special place in the lives of children.
- Fathers also occupy a special place in the lives of children.
- Too many fathers use custody and visitation issues as means to get even.
- Judges are not stupid, they can see through you.
- Too many fathers do not keep up their visitation commitments to the kids.
- Too many fathers try to replace the Mother with a new girlfriend.
- Too many fathers do not have a real custody plan.
- Too many fathers have been violent, controlling, abusive or indifferent.
- Too many father do not understand that drinking and using drugs matter.
- Too many fathers do not understand that having a job helps everyone.
- Too many father do not feel that paying child support matters.
- Coaching little league or soccer is not a fatherhood path.
Any man who feels he is being denied time with his
children, paying too much child support or feels that the Court system has
screwed him over should reread the forgoing list and examine his own behavior
and analyze how he measures up to society's expectations of him. If they
were honest, many men would see that their actions are in need of improvement.
The reason why
there is perceived bias against men is simply because of the actions of some of
the more boneheaded men in our society. Many times the prejudice is well founded
and joining a Father's Rights group, by itself, is "NOT" going to wipe out years
of violence, neglect, control or indifference to the needs of your
children. If you want to be a significant part of your children's lie then you
must make that goal a commitment. One that you must keep, even when it is
inconvenient.
If men want to be
treated seriously, then they should start acting seriously and responsibly
toward their obligation to their families. You can't simply talk the talk,
you have to walk the walk. And walking out on your family doesn't qualify. Men need to get involved, because it takes two parents to raise
well rounded children to adulthood. If you are a man who wants custody of
his children, then you need to understand the reality of the situation and what
it takes to achieve it.
Custody and Visitation Problems:
Let me tell you right up front, most of the so-called
legal and psychological experts hold their noses and look down on people who
have custody problems. I don't think that this type of attitude is useful,
because it doesn't make the problem go away, it only serves to make you feel bad
about protecting your children. Even if you have valid reasons to challenge
custody or visitation, do not expect the Court to embrace your problem with open
arms, because it isn't going to happen.
They don't care that the person
you chose to marry or have children with turned out to be a violent
lunatic or drug addict. That's your problem and, in a way, they are right, it is
your problem. So what are you going to do about it? You are going to have to
fight. Not only are you going to have to fight your ex-spouse, you are going to
have to fight the Court system.
The Battle:
The only way you even have a chance of prevailing in a
custody fight is to make the judge feel that you have a real problem. If you
sound the least bit vindictive, you might as well forget about it. If you sound
like you are doing this to save or get money, you can also forget about it. You
have to have a legitimate reason for a fight over custody or visitation.
Unfortunately many men just don't have one. What they have learned was that if
they can raise the amount of time that they can warehouse their children, the
less child support that they have to pay to the Bitch. If you are going to
fight for more custody time make sure it is really about the children and not
just about money.
The Preparation for Battle:
If one parent is physically or
emotionally cruel to the children, then you must describe this behavior in vivid
detail. You must have dates, time and places. It is not enough to simply say
that "dad was cruel to Jimmy at the party." You must detail that on January 1,
2002, we were at his mother's house and he got drunk and became verbally abusive
and belligerent. At about 7:30 P.M. he grabbed Jimmy, age 4, by the
ear and forcefully pulled Jimmy towards his face. When they were almost eyeball
to eyeball, he screamed in Jimmy's face that "until Jimmy said that he was sorry
for spilling his Coke he was going to hold Jimmy by the ear." Recount that when
you tried to separate Dad and Jimmy, Dad hit you and knocked you down. Tell how
Dad's mother wouldn't let you call the police. Describe how dad looked and that
Jimmy was so scared, that he wet himself.
Tell how you were finally able to
leave when Dad finally went into the bathroom to throw up. Tell how you actually
went to the Police and swore out a warrant for his arrest, produce a copy of
the police report, pictures of Jimmy's ear and pictures of your face. Produce
Doctor's reports that Jimmy came close to losing his hearing from Dad's actions.
Above all else, prosecute the perpetrator to the fullest extent permitted
under the law. Really protect your children, don't make excuses and let the
abuse continue. an abusive mate, whether male or female, is not a treasure, they
are a danger. While you have a absolute right to be a damn fool, you do not have
a right to expose your kids to that risk.
Notice that in
this example it is the Dad that is the bad guy. The reality is that this
scenario could just as easily involve the mom as the bad guy. Unfortunately the
statistics tell us that most often it is the man who is the batterer of women
and children. This is a statistic that I would like very much to see changed.
What say you?
What You Need to Demonstrate:
You have to put the "blood
and screams" on the paper. If you don't, then you are letting everyone
down, including Dad. Bring video tapes, audiotapes, photographs, blood stained
shirts, letters, apology notes, cards, or anything that will help substantiate
your story for the judge. Live witnesses are even better. Subpoena them if
need be, but get them to Court. Above all else, prosecute the bastard,
make no excuses and do not accept their excuses. Never give such an animal another chance to hurt you or your
children. No matter how mad his "enabler" mother will be,
you have to do the right thing.
One final note. Don't even think
about dismissing the case and taking back such a violent person. In fact today
many judges are holding the victims in contempt, when they violate the
restraining order by talking to the abuser or reconciling with them. It is not a
game and you have to treat it as serious as the Court does. If you don't, then
don't be surprised when the Court doesn't believe you the second time around.
And mark my word there will be a second time - there always is. Unless you stop
it.
Men can also be
the victims of an abusive spouse and what I have said here applies to them as
well. If your wife is abusive to you or your children, you do not have to take
it. Everyone has the right to live a life free of violence. We can stop
spousal abuse, by simply not tolerating it. A man can be abused and it is not
acceptable either.
Courtroom Tactics:
You have to walk a fine line when
you are dealing with what is referred to as "fault" evidence, because it can
bite you. If you go down this road, understand that you must have your feelings
under control at all times. You have to avoid becoming vindictive or appearing
to be petty or petulant. If you go too far overboard or the facts are
strange, the Court may order the case transferred to Children's Court.
While I won't go into the reasons why, that alternative should be avoided if at
all possible.
During the last few years Divorce Court's have
really adopted the "Psycho-babble" that many of the
mental health professionals that deal with custody evaluations spew. Judges have
become so concerned about the rights of the abusers, that they do not
automatically believe what comes from the victims. For that reason, you must
have the facts down pat, and stick to them like glue. You must provide facts so
compelling that the judge has no other choice but to grant your requests.
Sometimes you paint such a bleak
picture of the abuser that the Court actually feels sorry for them. In an
effort to avoid this effect, it is best that you demonstrate some of the
positive points of the abuser. Otherwise, the court may not believe your story.
However, don't go overboard or become maudlin. It takes a fine touch, a little
too much one way or the other and you are out of luck. Not to mention that the
judge is probably thinking, "if he is so bad, why did you marry him or
have babies with him." After all that doesn't say too much about
your own judgment.
Always Have a Plan:
After you have blasted your ex-spouse, you had better have a
positive plan. Because if all you have proven is how mean and rotten your
ex-spouse is, the judge may think that you aren't any better because you didn't
present a plan that addressed your points in a constructive way. You must
demonstrate with equal force that you are the best psychological parent. You
should demonstrate that it is in the children's best interest for you to
have primary physical custody. The judge must feel good about awarding you
custody. The judge should know that the children will be in a loving and
safe home. The judge should never feel that you are the lesser of two evils.
The 730 Evaluation:
In most cases involving custody
and visitation you are going to be facing a Evidence Code §
730 Evaluation. If you want to know more about how this works click here
on "730 Evaluation".
When you get
there you will find everything that you need to know about the child custody
evaluation process.
Less Than Worst Case Scenario:
Thankfully not every case is as bad as the one that we
presented here. That doesn't mean that you shouldn't have a parenting plan. Even
two people who want to the right thing do not always know how to do it. You
should remember that just because you failed at marriage doesn't automatically
mean that you have to fail at divorce too.
If your ex-spouse is willing
to work with you then by all means take the time to work out a parenting plan
that really works. Make an appointment with the Conciliation Court mediator to
help you work out a parenting plan. I have included some thoughts that I
have regarding what I think makes a good parenting plan. Please feel free
to adopt it for yourselves.
Your Parenting Plan:
Take the time to sit down with your
ex-spouse and your respective attorneys if need be. Have a written out
plan for custody and visitation to discuss with your ex-spouse and their
attorneys. Be prepared to substantiate your plan with reasons for each and every
single one of your suggestions. Make sure your reasons make sense. For example,
if you and your ex-spouse live 60 miles apart, a mid week visit might not be
feasible. Other things to consider:
-
Don't get hung up on labels.
The term "Primary Physical Custody" is an example of
a label, it is not a parenting plan. Discuss actual time sharing and
not labels. Do not disrupt the children by suggesting a major change in what
you are currently doing (Status Quo) without an
"extremely"
good
reason.
-
Never ever suggest splitting up
the children. Minor children need the company of their siblings as much as
they need their parents. Courts are loath to split up children. There are
two exceptions to this rule. (1) Both of you agree on this situation (2)
Sometimes older children require special situations. For example, one
child has hurt the other or has mental, sexual or substance abuse problems.
-
Be realistic and recognize the
reality of the situation. You should remember that the no one is going to recommend
or accept an unrealistic parenting plan. For example,
if you only want to spend 2 to 3 hours a week with the children, don't
ask for primary physical custody. It makes you look stupid or worse.
Always be honest.
-
Some attorneys counsel
mentioning negative things like abortions, affairs and shacking up. I would be very careful before
bring up something as controversial as an abortion. It could backfire on you
big time, especially if it was long ago or before you two married.
Remember that not everyone is against abortion or extremely religious.
Above all else, before committing to
any parenting plan of be sure that you completely understand every
aspect of the plan and that you are ready to do it. Both parents have their
strength and weaknesses, if you are not committed to parenting your
children on a daily basis, asking for primary physical custody doesn't make
sense, don't do it.
Once you have
agreed on a plan, write it up and have it made an order of the Court. Do
not rely on your memory or the good faith of the other party. Above all else
stick to it. If you say that you are going to visit the children on a particular
day be there. Everyone will appreciate it, especially the kids.
Someday, you may
be rewarded by seeing that child graduate college, marry, have children and have
the successful marriage that you were not able to achieve. If you can
successfully raise your children in spite of the divorce, then your
marriage was a success. You did your job.
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