Orders to Show Cause

Information on an Order to Show Cause in California

Child custody issues can come up as a result of a recent separation of a married couple, a divorce petitioner being filed, or two people never married but have a child in common. Legally, different issues arise as a result of the parents given status at the time of the child being born. However, this section is general description to assist you in making better decisions. It is also meant to separate out the issue of child custody generally, and not directly address the parties status at the time the child was born.

Broadly, when faced with custody issues between two parents, the California Family Code empowers the court, during the pendency of a marital action or at anytime thereafter, to make an order for the custody of a child during minority "that seems necessary or proper." As stated in California Family Code section 3022 or [Ca Fam § 3022]. However, in exercising the courts discretion the courts have a broad umbrella, courts must be guided by several basic statutory principles. Chief among these policy considerations are the following two:

1. Safety & Welfare: The court's "primary concern" is to assure the child's health, safety and welfare. This codified policy is a companion to the Legislature's express finding and declaration that "the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child." [Ca Fam § 3020(a) (emphasis added); see also Ca Fam § 3044]. Often times you have Department of Children and Family Services, or DCFS investigating allegations of abuse, and if they are involved special circumstances and the Juvenile Court versus Family Law Court may be making the decisions on care, custody and control. Please refer to the Dependency section within our web sight.

2. "Frequent and continuing contact" with both parents and shared parenting: Further, an appropriate custody/visitation award must take into account the codified policy "to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy" . . . except where the contact would not be in the child's best interest pursuant to Ca Fam § 3011 [Ca Fam § 3020(b) (emphasis added)]

TYPES OF CUSTODY ORDERS

The courts will make any of the following types Of Child Custody Arrangements, or Orders, as it relates to children:

Sole Custody Orders

1. Exclusive custody ("legal" and "physical") to one parent: An exclusive custody order gives one parent primary physical control of the child, with the right to make decisions regarding the child's residence, health, education and welfare. The non-custodial parent has secondary visitation rights as ordered by the court [Ca Fam §§ 3006 & 3007]

2. Sole Physical Custody: A parent may be granted exclusive physical custody without exclusive legal custody. This means the child resides with and is supervised by one parent, subject to the other parent's visitation rights; but the custodial parent does not have sole decision-making power regarding other matters affecting the child. [Ca Fam § 3007]

3. Sole Legal Custody: Conversely, a parent may be awarded the exclusive right and responsibility to make decisions relating to the child's health, education and welfare; but unless exclusive physical custody is also granted, that parent does not have sole control over the child's residence and supervision. [Ca Fam § 3006]

Joint Custody Orders

1. Pure Joint Custody: Under a "pure" joint custody plan, neither parent has sole physical or legal custody; both have authority to control and supervise the child, and the child's physical presence is shared. [Ca Fam § 3002]

2. Joint Legal Custody: Joint legal custody means that both parents share the right and responsibility to make decisions regarding the child's health, education and welfare. [Ca Fam § 3003]

3. Joint Physical Custody: A joint physical custody award means each parent has "significant periods" of physical custody. Physical custody must be shared in such a way as to assure the child "frequent and continuing contact with both parents," subject to Ca Fam §§ 3011 and 3020; but that does not mean the child's time must be equally divided with each parent (i.e., one parent can still be the "primary caretaker"). [Ca Fam § 3004]

4. Divided Or "Split" Custody: These are terms of art not defined by the Code. In its commonsense usage, "divided" custody generally means each parent is custodian of the same child for different finite periods of time, with cross rights of visitation. A "split" custody arrangement refers to varying parenting plans for several children, where each parent has custody of at least one child of the marriage at all times (e.g., father awarded custody of son, mother awarded custody of daughter) and both have visitation rights as to the non-custodial child.

THINGS TO CONSIDER BEFORE GOING TO ANY COURT HEARING

Generally, the initial appearances in court are some of the most important. As this tends to set the tone of the case in relationship to child custody and visitation. Therefore, before you go to court you should seriosuly consider getting an attorney involved. Again, the initial orders made by any courts have a tendency to set the trend for the case in terms of custody visitation and child support. It is much easier for counsel representing either parent to get more apporiate orders related to children, custody and visitation at or during the initial proceedings as compared with asking the court to make changes to the existing court orders.

While, this by no means you as a parent should consider the current court order, as the end all be all. Further, while it is true that we at McNamara & McNamara have successfully convinced many courts to change their initial orders in relationship to custody and visitation. The point is to provide you with information to consider before going to court on your own. That it is usually easier to get appropriate orders initially, as compared with after the fact going to an attorney to seek help addressing the orders which you did not like. It tends to be more time consuming and involved as compared to getting an attorney involved prior to the orders being made in your case.

Non-parent Custody

Subject to strict statutory standards, which are set forth in Cal Fam § 3041), custody may be granted to a non-parent (who will have exclusive responsibility for the child's care and control); the parents, at most, will have reasonable rights to visitation.

The factors considered by the Court in making custody awards in contested cases

The California Family Code makes clear that custody and visitation determinations are to be made from the standpoint of the child's best interest (consistent with the § 3020 policies.. [Ca Fam §§ 3011, 3020, 3040, 3041] The equities, feelings and desires of the contesting parties are only a factor to the extent they affect the child's best interest.

In making the "best interest" determination, the court can consider any "relevant" factors. [Ca Fam § 3011] The court "must look to all the circumstances bearing on the best interest of the minor child". However, among all the relevant factors, trial courts must consider the following (Ca Fam § 3011):

1. Child's Health, Safety, And Welfare: A "best interest" determination must take into account the child's health, safety and welfare. [Ca Fam § 3011(a); see also Ca Fam § 3020(a),(c)]. This is a paramount policy concern.

2. History Of Physical Abuse: The court must also consider any history of abuse by one parent or any other person seeking custody against (Ca Fam § 3011(b)) the child, the person seeking custody, or the current spouse.

As a prerequisite to consideration of allegations of physical abuse, the court may require "substantial independent corroboration" . . . including, but not limited to, written reports by law enforcement agencies, child protective services, etc.

3. Certain violent crimes restrict custody or unconditional visitation awards

A. Registered Sex Offender Or Child Abuse Conviction: Neither custody nor unsupervised visitation may be awarded to a parent or any other person who either (i) is required to be registered as a sex offender under Ca Penal § 290 where the victim was a minor, or (ii) has been convicted of specified child abuse offenses (under Ca Penal §§ 273a, 273d or 647.6) . . . unless the court finds there is "no significant risk to the child" and states its reasons in writing or on the record. [Ca Fam § 3030(a)]

B. Child Conceived By Rape: Without exception, no person convicted of rape pursuant to Ca Penal § 261 may be granted custody or visitation with respect to a child conceived by that act of rape. [Ca Fam § 3030(b)]

C. First Degree Murder Of The Other Parent: Neither custody nor unsupervised visitation may be granted to a person convicted of first degree murder (Ca Penal § 189) of the child's other parent . . . unless the court finds there is no risk to the child's health, safety and welfare and states its reasons in writing or on the record. [Ca Fam § 3030(c)]

D. History Of Drug And Alcohol Abuse: In determining the child's best interest, trial courts must also consider either parent's "habitual or continual illegal use of controlled substances" (as defined in Ca Hlth & S § 11000 et seq.) or "continual abuse of alcohol." [Ca Fam § 3011(d)]

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. [Ca Fam § 3011(d)]

4. Stability And Continuity Of Environment: 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 Cal.4th 25, 32-33, 51 Cal.Rptr.2d 444, 449-450 (emphasis added); see Burchard v. Garay (1986) 42 Cal.3d 531, 538, 229 Cal.Rptr. 800, 804-805]

5. Separation Of Siblings: California policy affords strong protection to sibling relationships. Absent compelling circumstances, such as extraordinary emotional, medical or educational need, an order separating siblings between custodial households ordinarily will be reversed as detrimental to the children's best interest. [Marriage of Williams (2001) 88 Cal.App.4th 808, 814-815, 105 Cal.Rptr.2d 923, 927-998]

6. Child's Wishes: The court must "consider" and give "due weight" to the wishes of children who are of "sufficient age and capacity to reason so as to form an intelligent preference as to custody." [Ca Fam § 3042(a); see also Ca Fam § 3030(c)(1)].

Note: While the above is, by no means, a complete listing of all of the factors the court may decide to take into consideration in making a custody award. The court has very broad discretion to consider any evidence relevant to the "best interests of the child."

California Child Custody Procedure:

The parties may - and are encouraged to - enter into a written stipulation (agreement) on custody issues. If the parties cannot agree, custody orders may be made at any time after the filing of an underlying divorce, paternity, or domestic violence action including a restraining order case, and may be modified at any time until the child(ren) turn eighteen.

Legal Actions which start a custody case can be the following:

1. An Order to Show Cause (OSC) which is seeking either custody, visitation and child support, among other legal issues which may be addressed. This procedure can be used to address for the first time or to request a change in the current orders regarding children.

2. Paternity and Divorce Proceedings seeking findings as to parentage and custody visitation and support. See the appropriate web pages within this sight.

3. A Restraining Order, please refer to the Restraining Order page of this web-sight

4. A Dependency Matter, please refer to the Juvenile Dependency Pages within this web-sight

Child custody orders may be modified at any time before they terminate as long as the party moving for the modification can show that there has been a change in circumstances affecting the welfare of the child(ren) since the last order.

CHANGE IN CIRCUMSTANCES REQUIRED

Such changes in circumstances include (but are by no means limited to):

Change in residence of one of the parents. (This may require a motion for a "move-away order")

The desire of an older child to increase or decrease visitation.

Evidence of abuse of a child.

Alteration of the child(ren)'s school schedule

If you have a case pending with issues of child custody then McNamara & McNamara would encourage you to seek out legal advice now. Please fell free to call us immediately at our office number, or make contact with us through our web-sight on the contact page herein.