Wednesday, January 5, 2011

A JOINT CUSTODY DILEMMA REGARDING A CHILD'S PREFERENCE

DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and Divorce.

I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:

QUESTION: When parents have joint custody, do both need to approve of a child moving out of state for school? When parents are divorced and have equal and joint custody of their child, does a child need both parents approval in order to go away to something like a private school or college prep school? it is a boarding school scenario. If the child does need the approval of both parents, then can the child appeal to a judge? Will the child need to hire a lawyer? What can be done? (The child in question is nearly 16 years old and wishes to spend their last two years of high school at an advanced private school, but one parent will not agree to let the child go.)

ANSWER: Under the circumstances that you relate, you would best file an Order to Show Cause seeking an order modifying physical and legal custody to permit you to send your son to the boarding school he wants to go to, and you should file and serve a witness list of nonparty witnesses comprising your son and any other person (other than you) whose testimony would be relevant to the issue - including a brief description of the anticipated testimony of each nonparty witness. Your son can't appeal to the judge independently of your Order to Show Cause, but may be allowed to directly or indirectly present his desires to the Judge, as indicated below. The Court may, if you request in your Order to Show Cause, appoint Minor's Counsel to represent your son, but is not required to do so.

Look at the Judgment or Order awarding "joint custody", and read its provisions regarding joint legal custody, to determine whether the court specified that the consent of both parties is required with regard to your son's education, and then read its provisions regarding joint physical custody, to determine whether sending your son to the out-of-state boarding school would be inconsistent with the physical custody order.

I would assume that sending your son to the out-of-state boarding school would be inconsistent with the physical custody order awarding joint physical custody, insofar as it relates to your wife's physical custodial rights.

Family Code Section 3002 defines Joint Custody as joint physical custody and joint legal custody.

Family Code Section 3003 defines Joint Legal Custody to mean that both parents shall share the right and responsibility to make the decisions relating to the health, education and welfare of a child.

Family Code Section 3083 provides that in making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parties is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the Court.

Family Code Section 3150 provides (a) If the court determines that it would be in the best interest of the minor child, the court may appoint private counnsel to represent the interestsof the child in a custody or visitation proceeding, provided that the court and counsel comply with the requirements set forth in California Rules of Court Rules 5.240, 5.241 and 5.242. (b) Upon entering an appearance on behalf of a child pursuant to this chapter, counsel shall continue to represent that child unless relieved by the court upon the substitution of other counsel by the court or for cause.

Family Code Section 3042 provides that (a) if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody; (b) In addition to the requirements of Evidence Code Section 765(b), the court shall control the examination of the child witness so as to protect the best interests of the child. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child's preferences. [As of January 1, 2012, an amended version of Family Code Section 3042 will come into effect].

Family Code Section 217, effective January 1, 2011, provides in relevant part: (a) At a hearing on any order to show cause or notice of motion, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties. (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.

Your Order To Show Cause should be supported by 1) a declaration by you addressing the change you seek and detailed facts relating to your research of and dealings with the boarding school and your son regarding his request to go to the boarding school, along with your proposed custodial plan; 2) a detailed declaration by your son regarding his desire to go to the boarding school, his reasons why, and demonstrating his intelligent preference and his capacity to reason, and 3) a declaration of any other person with relevant testimony (such as his principal, counselor, or teacher) relating to and justifying your son's desired educational (and physical) move.

Your witness list should include your son and a brief description of his anticipated testimony.

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