Wednesday, October 21, 2015
Sunday, October 18, 2015
Friday, October 16, 2015
Wednesday, October 14, 2015
Tuesday, October 13, 2015
Saturday, September 26, 2015
Friday, September 25, 2015
Thursday, September 24, 2015
Tuesday, September 22, 2015
Domestic Violence and its effect on a custody order
Domestic Violence and its effect on a custody order
Monday, September 21, 2015
Sunday, September 20, 2015
Friday, September 18, 2015
Thursday, September 17, 2015
Tuesday, September 15, 2015
Monday, September 14, 2015
Saturday, September 12, 2015
Thursday, September 10, 2015
Wednesday, September 9, 2015
Tuesday, September 8, 2015
Monday, September 7, 2015
Saturday, September 5, 2015
Thursday, September 3, 2015
Tuesday, September 1, 2015
Monday, August 31, 2015
Sunday, August 30, 2015
Friday, August 28, 2015
Wednesday, August 26, 2015
Tuesday, August 25, 2015
Sunday, August 23, 2015
Saturday, August 22, 2015
Thursday, August 20, 2015
Wednesday, August 19, 2015
Monday, August 17, 2015
Saturday, August 15, 2015
Excessive overtime during the marriage? Earning Capacity child support
Excessive overtime during the marriage? Earning Capacity child support
Friday, August 14, 2015
The other parent moved to another state and makes less money? Earning Capacity child support
The other parent moved to another state and makes less money? Earning Capacity child support
Wednesday, August 12, 2015
A parent quits work to take care of new family? Earning Capacity
A parent quits work to take care of new family? Earning Capacity
Tuesday, August 11, 2015
How does the court determine custodial timeshare when the child is in daycare or school?
How does the court determine custodial timeshare when the child is in daycare or school?
Monday, August 10, 2015
What happens to the children in same sex marriage?
What happens to the children in same sex marriage?
Saturday, August 8, 2015
How do I end a domestic partnership or same sex marriage?
How do I end a domestic partnership or same sex marriage?
Thursday, August 6, 2015
Wednesday, August 5, 2015
Can the other parent and I agree to a child support amount?
Can the other parent and I agree to a child support amount?
Tuesday, August 4, 2015
Does my new spouse income matter in child support calculation?
Does my new spouse income matter in child support calculation?
Sunday, August 2, 2015
Does the court have to use the "guidelines" for child support in california?
Does the court have to use the "guidelines" for child support in california?
Friday, July 31, 2015
The other parent will not comply with visitation and I have to incur child care expenses?
The other parent will not comply with visitation and I have to incur child care expenses?
Thursday, July 30, 2015
Wednesday, July 29, 2015
Tuesday, July 28, 2015
Monday, July 20, 2015
I want to change custody
I want to change custody 
Many times parents want to change primary custody of the children as opposed to modifying visitation. Statutory and case law makes changing custody much more difficult than merely modifying visitation. Although not reduced to express statutory terms, a significant component of the “best interest” assessment is the policy goal of protecting a stable custody arrangement. “As we have repeatedly emphasized, the paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining ongoing custody arrangements.” [Marriage of Burgess (1996) 13 C4th 25, 32–33, 51 CR2d 444, 449–450. When a successful custody arrangement (whether de jure or de facto) has continued over a significant period, the child's need for continuity and stability assumes an “increasingly important role.” This factor will often dictate that the current arrangement be maintained because in the child's best interest.
Where, in most relevant respects, a trial court finds both parents to be equally capable, using the “stability” factor as the “tie-breaker” (awarding physical custody to the parent who has most recently been the primary custodian) is well within its discretion. By the same token, considering all the relevant circumstances—including the child's relationship and the relationship between the parents; with both parents, age, community ties, health and educational needs and, where appropriate the child's preferences—the child's best interests as a whole might require a change in the existing custody arrangement.
Noncustodial parent's burden: Given the importance of stable custodial and emotional ties, in cases where custody has been lawfully acquired and maintained for a significant period (whether de jure or de facto), a noncustodial parent seeking custody bears the burden of persuading the trier of fact that a change in custody is in the child's best interest. Because of the “stability factor's” significance in the best interests weighing process, and to facilitate appellate review of a contested custody order, the Supreme Court has commented that trial courts “would do well to state on the record that they have considered this interest in stability ... ” But the failure to do so is not error “and does not indicate that the court failed to properly discharge its duties.”
One must also consider the role of the "change of circumstances" standard as opposed to merely the "best interest of the child" standard. If the court has made orders after a trial on custody and visitation, the noncustodial parent must also prove that there is significant change in circumstances and that the change would be in the child's best interest.
Separating siblings disfavored: It is California public policy that “the sibling bond should be preserved whenever possible.” Absent evidence of compelling circumstances (such as extraordinary emotional, medical or educational needs), an order separating siblings between custodial households ordinarily will be reversed as detrimental to the children's best interest. In making its decision, the family court must consider (among other relevant factors) the children's interest in having a meaningful opportunity to share each other's lives and the potential detriment to them from being separated. “Children are not community property to be divided equally for the benefit of their parents ... At a minimum, children have a right to the society and companionship of their siblings.”
If you are considering requesting a change in custody, you need to schedule a consultation with the experienced lawyers at the Law Offices of H. William Edgar. Call today to schedule a free initial consultation.
www.EdgarFamilyLaw.com
www.EdgarFamilyLaw.com
Drug Testing in Custody Cases
Drug and Alcohol testing in a custody case
In determining the child's best interest, trial courts also must consider either parent's “habitual or continual” alcohol abuse, their “habitual or continual” illegal use of controlled substances, or their “habitual or continual” abuse of prescribed controlled substances. Before considering allegations of a parent's drug or alcohol abuse, the court may require “independent corroboration”—such as written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical and rehabilitation facilities, or other organizations providing drug and alcohol abuse services.
Court ordred testing for illegal drug/alcohol abuse: Under strict statutory conditions, the court may order any person seeking custody or visitation to undergo testing for the use of illegal controlled substances or alcohol; and may order either or both parties to pay the costs of such testing. For years, the court routinely ordered a parent to take a hair follicle drug test, but in recent years that has been limited by the court and the holding in the Wainright case. Now, the court can still ordered a drug test, however, the court can only order a urine test. However, if a parties agrees to take a hair follicle drug test, the court will accept the stipulation of the party and order a person to drug test using a hair follicle drug test. (The statutory conditions are intended to address the constitutional concerns noted in prior case law that interpreted the then-existing Family Code as not authorizing compelled drug/alcohol testing in custody litigation (Wainwright v. Super.Ct. (Sinkler) (2000) 84 CA4th 262, 266–269, 100 CR2d 749, 752–754).) First of all, there must be a judicial determination based upon a preponderance of evidence that there is the “habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol” by the person seeking custody or visitation (parent, legal custodian, person seeking guardianship or person seeking visitation in a guardianship). The determination may be based on (but is not limited to) evidence of a conviction within the past five years for the illegal use or possession of a controlled substance. The example that I often use is when someone does drugs one time at a New Years Eve party and then is hauled into court the following week. In that situation, the one time use is not sufficient to order someone to take a drug test-their is a difference between use and abuse. The code is quite clear in that it must be habitual, frequent and continual. They are still chain of custody issues with taking a drug test. We would strongly recommend that the lab doing the test is a title 17 certified lab and never agree to a home based test. The court must order the “least intrusive” method of testing. And, any substance abuse testing must be performed in accordance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees.
Presently, the federal drug-testing standards only allow for urine tests; thus, e.g., the court may not order a parent (or other custody/visitation claimant) to submit to a hair-follicle drug test under § 3041.5. [Deborah M. v. Super.Ct. (Daryl W.) (2005) 128 CA4th 1181, 1191–1194, 27 CR3d 757, 764–766 (also noting that proposed amendments to federal standards permitting hair-follicle and other alternative testing methods have not yet been adopted)]
The test results may not be used for any purpose (whether criminal, civil or administrative) other than to assist a court adjudicating custody or visitation in determining the child's best interest pursuant to the family code and the content of the custody/visitation order or judgment.
So the test is positive, so then what?
Effect of positive test results
First, the party has the opportunity to challenge: The person who underwent the testing (parent or other custody/visitation claimant) has the right to a hearing, on request, to challenge a positive test result. In rare instances, there are false positives due to something a person ate or an interaction from a prescription drug.
Not sole basis for denying custody: Even if challenged and upheld, however, a positive test result “shall not” itself constitute grounds for an adverse custody (or guardianship) decision.
Lastly, Confidentiality of test results: The test results “shall be confidential” and maintained in the court file as a sealed record. The results may not be released to any person except the court, the parties, their attorneys, the Judicial Council (until completion of its study of the testing process, see Stats. 2004, Ch. 19, § 2(b)) and any person expressly granted access by written court order made with prior notice to all parties. Further, any person with access to the test results may not disseminate copies or disclose information about the results to anyone not authorized to receive the results pursuant to the statute.
That can be a lot of issues when dealing with drug testing in a custody case. The Law Offices of H. William Edgar has handled this issue many times over the years and can answer all of your questions and concerns and strategies that work in court. Contact the Law Offices of H. William Edgar today for a free consultation to discuss your custody and visitation case if there are concerns about alcohol or drug abuse.
WWW.EDGARFAMILYLAW.COM
Parental Alienation
 |
Parental Alienation
Parental alienation (or Hostile Aggressive Parenting) is a group of behaviors that are damaging to children's mental and emotional well-being, and can interfere with a relationship of a child and either parent. These behaviors most often accompany high conflict marriages, separation or divorce. These behaviors whether verbal or non-verbal, cause a child to be mentally manipulated or bullied into believing a loving parent is the cause of all their problems, and/or the enemy, to be feared, hated, disrespected and/or avoided. Characteristics, such as lack of empathy and warmth, between the rejected parent and child are some indicators. The term does not apply in cases of actual child abuse, when the child rejects the abusing parent to protect themselves. Parental alienation is controversial in legal and mental health professions, both generally and in specific situations. Terms related to parental alienation include child alienation, pathological alignments, visitation refusal, brainwashing, pathological alienation, the toxic parent and parental alienation syndrome. Some professionals will claim that alienation is not a "syndrome" or will attempt to indicate that it does not exist. We have been practicing family law for many years and have seen first hand the detrimental affects that parental alienation can have on a family and, more importantly, the children.Parental Alienation
First described in 1976 as "pathological alignment", the dynamic refers to a situation in which a child unreasonably rejects a non-custodial parent. Richard A. Gardner proposed parental alienation syndrome in the 1980s based on his clinical experience with the children of divorcing parents. Since that time, other researchers have suggested focusing less on diagnosing a syndrome and more on what has been described as the "alienated child", and the dynamics of the situation that have contributed to the alienation. In this view, alienation is seen as a breakdown of attachment between parent and child and may be caused by multiple factors. The behaviors of all family members, including those of the alienated parent, may lead to family dysfunction and the rejection of a parent. The evaluation of all contributing factors and all possible remedies are recommended in evaluating cases where children have become estranged from a parent.
Parental alienation lacks a single definition and its existence, etiology, characteristics, and in particular the concept of parental alienation syndrome have been the subject of debate. Some formulations of the concept have emphasized the role of an alienating parent, termed variously the "programming" parent or "embittered-chaotic parent". More recent descriptions, influenced by the research of Kelly and Johnston, have proposed a more complex analysis, in which all family members may play a role. This "systems-based" view acknowledges that a child may be alienated from one parent without "alienating" behavior by the other parent. The results of an empirical study also suggest that alienating behaviors by both parents are the norm in high-conflict divorces. Rejected parents, generally fathers, tend to lack warmth and empathy with the child; instead, they engage in rigid parenting and critical attitudes. The rejected parent is often passive, depressed, anxious, and withdrawn - characteristics which may encourage further rejection. The parent that the child aligns with (the aligned parent) may engage in alienating behaviors, including undermining the other parent. These behaviors may be conscious and deliberate or, alternatively, may reflect a lack of awareness on the effect of the actions on the children. Direct alienating behaviors occur when one parent actively undermines the other parent, such as making derogatory remarks about the other parent, telling the child that the other parent is responsible for the separation, or telling the child that the other parent is the cause of financial difficulties. Indirect alienation behaviors occur when one parent fails to support access or contact with the other parent or tacitly accepts the child's negative behavior and comments towards the other parent.
Professional acceptance
A survey of mental health and legal professionals indicated that there is moderate support for the existence of parental alienation. However, there remains general reluctance to accept the concept of parental alienation syndrome (PAS). William Bernet argued for the inclusion of parental alienation disorder, a diagnosis related to parental alienation, in the fifth version of the Diagnostic and Statistical Manual of Mental Disorders, which was released in 2013. His conception makes reference to PAS and a variety of other descriptions of behaviors he believes represent the underlying concept of parental alienation disorder. Despite lobbying by proponents, in December 2012, the proposal was rejected. Similarly, the American Psychological Association has rejected Parental Alienation Syndrome as unscientific and sexist. The APA whitepaper notes: "Although there are no data to support the phenomenon called parental alienation syndrome, in which mothers are blamed for interfering with their children’s attachment to their fathers, the term is still used by some evaluators and courts to discount children’s fears in hostile and psychologically abusive situations." [ American Psychological Association, Violence and the Family, American Psychological Association, Washington, D.C., 1996, p. 40] Some have suggested that the general idea of PAS is covered in the DSM-5 under a closely related diagnosis: "Parent-Child Relational Problem." For example, the child’s perception of an alienated parent "may include negative attributions of the other’s intentions, hostility toward or scapegoating of the other (parent), and unwarranted feelings of estrangement." In a survey at the Association of Family and Conciliation Courts in 2010, 98% of the 300 respondents agreed with the question, "Do you think that some children are manipulated by one parent to irrationally and unjustifiably reject the other parent?". However, Parental Alienation Syndrome refers not to this manipulation, but to a serious illness in the child in which he or she despises and rejects one of the parents. Since both the American Psychiatric Association and American Psychological Association have explicitly rejected Parental Alienation Syndrome, it does not meet the Frye test for admissibility in court in most states. Attorneys and expert witnesses may still argue that a parent undermines the child's relationship with the other parent through inappropriate actions or statements.At the Law Offices of H. William Edgar we have seen many cases of Parental Alienation and can help you. Please call today for a consultation with one of experienced custody and visitation attorney to discuss your rights and your options. Get the results that your family deserves.
WWW.EDGARFAMILYLAW.COM
Subscribe to:
Comments (Atom)