Posts Tagged ‘child custody’
by Chris Dietrich
What is a right of first refusal for childcare?
A right of first refusal, also called a right of first option for child care, is a general term for a child custody order provision which provides that if the custodial parent is unable to be with the child during their scheduled time (be it for work, school, or other engagements) that the other parent is given the option to watch the child before non-parties (like babysitters, nannies, or daycare providers) are called in. The idea behind these types of provisions is that it is best for the child’s development to be with parents to the maximum extent possible.
The devil in the details of right of first refusal orders
As stated above, the term “right of first refusal” is a general term describing a type of order. Without specific language regarding the purpose, intention, and limitations of how a right of first refusal should operate, an agreement that the parties “have a right of first refusal” isn’t worth the paper it’s printed on.
- How frequently are situations where a right of first refusal may apply going to come up? If a schedule provides one parent with time which they are consistently unable to exercise it may be necessary to consider revising the general parenting schedule to establish a more stable routine.
- Is work related childcare included in the right of first refusal? A common reason that one may use childcare is so that they can go to work. Some parties expressly exclude work related childcare from the right of first refusal so that the child can have a more consistent routine, while others want to include work related childcare needs in a right of first refusal to maximize the time the child is with a parent. It is important to address this particular need in crafting a right of first refusal.
- What minimum amount of time should the custodial parent be unavailable before a right of first refusal kicks in? Viewed legalistically, a general right of first refusal without specific limitations could require one parent to call the other if they have to have someone watch the child for a quick shopping trip, requiring the parties to spend more time coordinating logistics than the amount of time the custodial parent is going to be away. To avoid such an absurd result the language of a right of first refusal order only comes in to play if the custodial parent has to be away for several hours or more. The minimum amount of time which is appropriate varies on each individual family and their needs.
- What about time with extended family? Even if a parent is unavailable during their parenting time there are a variety of good reasons they may want to have the child spend time with extended family members. Read legalistically, a right of first refusal could be read to bar this time with extended family unless the custodial parent is present. It’s a good idea to discuss this issue and determine what exceptions like this may apply to a right of first refusal.
The right of first refusal is such a common part of California child custody orders that the California Judicial Council added form language to an optional child custody order attachment for the courts and family law litigants to use to create a right of first refusal for childcare. The form language reads as follows:
“Right of first option of child care. In the event either parent requires child care for (specify number) ______ hours or more while the children are in his or her custody, the other parent must be given first opportunity, with as much prior notice as possible, to care for the children before other arrangements are made. Unless specifically agreed or ordered by the court, this order does not include regular child care needed when a parent is working.” – FL 341(D) – Optional Additional Provisions – Physical Custody Attachment
While the judicial council form language is good and will work for many parents, it is important to ensure that the considerations above are addressed so that a right of first refusal is right for you and your unique needs.
Who is a right of first refusal good for?
Whether a right of first refusal makes sense for you depends on many factors. My experience working with a variety of families shows that generally a right of first refusal can be successful in the following situations.
- If the parents have a good communication skills with each other. The implementation of a right of first refusal requires regular civil communication between parents. Of course, good communication skills do not happen by accident and can be learned, giving such an order a greater chance of success, but this order should not used for parents who are constantly arguing.
- If one (or both) parent(s) have variable schedules. If work, school, or other constraints require one or both of the parents to be unavailable for chunks of their parenting time, making it impossible to set an exact workable schedule, a right of first refusal may be the best solution to that problem.
- Parents who work together with flexibility and cooperation. Like many other parenting issues, being flexible and cooperative with the other parent is good for the productivity of the co-parenting relationship and is good for the children involved. Parents who do this well in practice (but who may need a little help establishing general guidelines on how to do so) can often benefit from a right of first refusal.
Who is a right of first refusal not good for?
Experience also shows that there are some for which a right of first refusal would not be a good idea and may even make a difficult situation worse.
- If there is a history of domestic violence between the parties (whether or not a restraining order is in effect) a right of first refusal may cause more harm than good as it requires a high level of communication with the other parent.
- If one parent’s time is limited to supervised visitation a right of first refusal would not be consistent with the child’s best interests.
- If the parents do not communicate well a right of first refusal will likely not operate well in practice.
- If one or both parents are inclined to legalistic behaviors and interpretations of court orders regardless of how that impacts the children, such an order may lead to disputes.
- If the parents do not live close to each other, for practical reasons.
For assistance in determining whether a right of first refusal is workable for you and your needs please contact our office to schedule a consultation with one of our experienced child custody attorneys.
by Chris Dietrich
One of the most pressing concerns for any parent going through a divorce, legal separation, or break up is what will happen with the children. Even in the most amicable of breakups numerous new challenges arise, including changes in housing, finances, scheduling, work, and many other areas of life, all of which must be considered and addressed to create a parenting plan in the children’s best interest. In more contentious breakups there may be additional serious issues present such as neglect, abuse, addiction, as well as other serious concerns.
California Family Code §3170 requires that in any contested custody case that the parties first participate in mediation to attempt to resolve custody disputes with an agreement before the issues are tried in front of a judge. This requirement is imposed under the belief that an agreement which the parties come up with themselves for their children is usually better and will be more successful in the long term than one imposed by the courts. To assist the parties in working through these various difficult issues the mediation is conducted with the assistance of highly trained therapists who are familiar with the common issues that need to be addressed in custody disputes.
In some counties, commonly referred to as “recommending” counties the mediator has an additional role when the parties are unable to reach an agreement. In these counties the mediator will present a written recommendation to the court regarding a parenting plan for the minor children. In these counties the mediation process has increased significance as the mediator’s recommendations are often adopted in whole or in large part by the court. Many local counties, including Sacramento, Placer, Yolo, San Joaquin, and Stanislaus counties are recommending counties. In other counties, the mediation process is entirely confidential and the mediator does not make recommendations to the judge if the parties are unable to reach an agreement.
All courts in California have an office called Family Court Services to provide mediation services to the parties in contested custody cases. Most custody mediation is handled through these court offices that provide their mediation services at no cost to the parties. As an alternative parties may request (either with an agreement or without) that the parties be referred to private Child Custody Recommending Counseling (CCRC) to assist parties in resolving contested custody issues and if needed, to investigate and prepare a recommendation to the court regarding custody. This counseling is done by an experienced therapist within special training dealing with contested custody issues. The expense of the private CCRC is paid by the parties, usually with the party who requested it advancing or paying 100% of the cost upfront with the court reserving the ability to divide the cost between the parties at a later date. Due to limited resources in the office of Family Court Services, most mediation sessions last between 15 minutes to one hour, whereas when the case is set for private CCRC the parties will spend multiple hours with the counselor who will also invest time outside of these meetings investigating and preparing recommendations. While it is not necessary or affordable for parties in all cases, private CCRC provides a valuable service to resolve difficult custody disputes.
If you are facing decisions regarding custody issues it is important that you contact an experience family law attorney who can advise you regarding your options and strategies to obtain a custody order in your children’s best interests.
by Chris Dietrich
On October 4, 2013 Governor Jerry Brown signed into law Senate Bill 274 which enacted new statutory amendments to clarify that a child may have more than two parents in the appropriate circumstance. This means that in certain circumstances more than two parties can have the rights to custody and visitation of a minor child, and that more than two parents may have the obligation to support a child.
The new law provides that a child may be found to have more than two parents if it would be detrimental to the child to recognize only two parents. To determine whether there would be detriment to a child in this circumstance the court is called to consider various factors including whether a proposed third parent has met the physical needs of that child, whether they have met the psychological needs of a child for care and affection, and how long they have assumed that role, among other factors.
In addition to showing that there would be detriment to the child if there are only two parents, one of several existing statutory grounds to establish paternity will have to be proven as to the non-biological parent. Some examples of these methods of establishing paternity are (1) being married to the mother of the child, (2) attempting to marry the mother of the child before or after the child’s birth, (3) or receiving that child into their home and holding it out as their own.
Demonstrating to a court that these facts exist can be complicated and may require expert testimony from child psychologists or other child custody professionals and will often have to be resolved with a trial or evidentiary hearing. It is important if you are facing these complicated issues that you consult with a family law attorney right away to assist you in navigating these very tricky claims.