CHILD VISITATION LAW
IN CALIFORNIA
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General California Child
Visitation Information
In making a child custody order between
the parents in California, the court must also grant the other
(noncustodial) parent "reasonable visitation rights"
. . . unless it is shown that visitation would be "detrimental
to the best interest of the child." [Ca Fam § 3100(a)]
Because of the importance placed on "frequent
and continuing contact" with both parents, an order completely
withholding a parent's visitation privileges may issue only
upon a finding that any form of visitation with the parent would
be "detrimental" to the child's best interest. [Ca
Fam § 3100(a)] If the custody order does not provide for
parent visitation rights but does not expressly withhold such
rights, the noncustodial parent has an implicit right to "reasonable
visitation."
Trial courts generally have broad discretion
in defining a parent's "reasonable visitation" rights
and establishing a visitation schedule. Subject to a few statutory
limitations (below), the sole guideline is the child's best
interest (Ca Fam § 3100(a)).
Factors Considered By The Court
In Making California Child Visitation Orders
In all cases, child visitation orders
must accommodate the paramount policy of assuring the child's
health, safety and welfare and, to the extent consistent therewith,
the policy preference for "frequent and continuing contact
with both parents", except where such contact would not
be in the child's best interest pursuant to the Ca Fam §
3011 factors. [Ca Fam § 3020]
Beyond this general framework, courts
consider such practical matters as the child's age, maturity
and special needs, the parent's physical proximity to the child's
primary residence and, where appropriate, the child's own preference.
Improper Considerations In Making
Child Visitation Orders
Visitation Not Tied To Payment
Of Child Support: Parent
visitation rights must be adjudicated independently of other
issues before the court. Notably, a visitation order may not
be tied to or conditioned upon the payment of child support
. . . which has no bearing on whether parental contact would
be detrimental to the child.
Parent's absence from family
home or relocation: A parent's absence or relocation
from the family residence cannot be considered in determining
visitation (or custody) provided (i) it lasted only a short
time and, during that time, the parent demonstrated an interest
in maintaining custody or visitation, or maintained or made
reasonable efforts to maintain regular contact with the child
and demonstrated no intent to abandon the child; or (ii) the
absence or relocation resulted from actual or threatened domestic
or family violence by the other party. [Ca Fam § 3046(a)(1)
& (2)]
Lifestyle, sexual preference,
religious beliefs, etc.: Visitation rights cannot be
restricted solely on the basis of a parent's "unconventional
lifestyle," the parties' "opposing moral positions"
or the "outright condemnation of one parent's beliefs by
the other parent's religion" . . . unless there is evidence
these factors are detrimental to the child. "In the
absence of any indication of harm, [restrained visitation] is
unreasonable and must be vacated." [Marriage of Birdsall
(1988) 197 Cal.App.3d 1024, 1031, 243 Cal.Rptr. 287, 291]
Decision Making During Visitation
Periods
The right to make ultimate decisions
regarding the child's upbringing belongs to the parent with
"legal custody"; decision-making authority does not
shift between parents during visitation periods unless they
have "joint" legal custody. [See Ca Fam §§
3006 (sole legal custody), 3003 (joint legal custody)]
Child's Refusal To Visit
Implementing a visitation order necessarily
turns upon the custodial parent's ability to make the child
available for visitation. A custodial parent probably has sufficient
control over a child of "tender years" to compel the
child to visit with the other parent under the terms of the
court order; and the custodial parent's failure to comply would
thus be punishable by contempt.
But the rule is otherwise as to teenagers.
Technically, teenage children remain subject to their parents'
control until age 18 or marriage (see Ca Fam § 7505). Nonetheless,
if a teenage child refuses to visit with the noncustodial parent
per the terms of a court order through no fault of the custodial
parent, the noncustodial parent is probably left without a remedy.
Simply stated, it is unclear how the custodial parent would
have the ability to force the child to visit. [See Coursey v.
Super.Ct. (Coursey) (1987) 194 Cal.App.3d 147, 154-156, 239
Cal.Rptr. 365, 369-370--court erred in holding mother in contempt
for violation of visitation order re 14-year-old child because
no showing mother had ability to compel child to visit]
Nonparent Visitation (Grandparents
And Others)
California law confers discretion on
the court to grant "reasonable visitation" rights
"to any other person [a nonparent] having an interest in
the welfare of the child." [Ca Fam § 3100(a) --"reasonable
visitation may be ordered to any other person . . ." (emphasis
added); Barkaloff v. Woodward (1996) 47 Cal.App.4th 393, 398,
55 Cal.Rptr.2d 167, 170]
However, this right is limited. Parents
have a 14th Amendment substantive due process "fundamental
right" (a "liberty interest") to make decisions
concerning the care, custody and control of their children.
A state law that, as applied, allows trial courts to grant nonparent
visitation rights over a parent's objection whenever the court
determines such visitation may serve the child's best interest,
unconstitutionally infringes on that right. [Troxel v. Granville
(2000) 530 U.S. 57, 65-70, 120 S.Ct. 2054, 2060-2062 (invalidating
application of Wash. statute authorizing grandparent visitation
solely on "best interest" showing]
Therefore nonparent visitation rights
in a case contested by a parent may constitutionally be granted
only if, in applying the state statute, the trial court gives
a presumption of validity or at least special weight to the
parent's decision that the visitation would not be in the child's
best interest. A court decision effectively presuming the opposite
(that third party visitation should be granted absent a showing
the child would be adversely impacted) directly contravenes
the traditional (substantive due process) presumption that a
fit parent will act in the child's best interest.
With regard to grandparents seeking visitation,
parents' due process right to make decisions concerning their
children's care, custody and control does not necessarily preclude
a court from granting the nonparent visitation over the objection
of a "fit" parent or parents. "The decision of
fit parents regarding grandparent visitation is entitled to
special weight, but not necessarily immunity from judicial review."
[Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1484-1485, 1
Cal.Rptr.3d 185, 200]
"If a court can deprive fit parents
of the custody of their children without violating the parents'
fundamental right to the care, custody, and control of their
children, then certainly a court can order grandparent visitation--a
much more limited form of interference with the parents' custodial
rights--without necessarily causing such a violation."
[Fenn v. Sherriff, supra, 109 Cal.App.4th at 1486, 1 Cal.Rptr.3d
at 201]
The noncustodial parent-petitioner, and
not a contesting parent, must carry the burden of proof in these
cases--i.e., demonstrating "special factors" that
would warrant state interference with the parent's decision
on the matter. [Troxel v. Granville, supra, 530 U.S. at 67-70,
120 S.Ct. at 2061-2062]
California Procedure In
Child Visitation Cases:
The parties may - and are encouraged
to - enter into a written stipulation (agreement) on visitation
issues.
If the parties cannot agree, visitation
orders may be made at any time after the filing of an underlying
divorce, paternity, or domestic violence action and may be modified
at any time until the chilf(ren) turn eighteen. In contested
cases, they are most commonly made:
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At the time of the filing of the
initial documents in a "Temporary Restraining Order"
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Within a few weeks of the filing
at a hearing on application for "Order To Show Cause"
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At the time of trial
Modification Of Child
Visitation Orders:
Child visitation orders may be modified
at any time before the visitation orders 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.
Such changes in circumstances include
(but are by no means limited to):
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Change in residence of one of the
parents. (This may require a motion for a "move-away
order")
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The desire of an older child to
increase or decrease visitation.
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Evidence of abuse of a child.
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Alteration of the child(ren)'s school
schedule
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