California Judges Benchguide 200

1 California Judges BENCHGUIDES Benchguide 200 custody AND VISITATION [REVISED 2017 ] ABOUT CJER The Judicial Council of California s Center for Judicial Education and Research (CJER) leads and supports continuing professional development for the California judicial branch. CJER s Governing Committee is an advisory committee to the Judicial Council, which sets policy and direction for judicial branch education. Created in 1973 as a joint enterprise of the Judicial Council of California and the California Judges Association, CJER addresses the unique roles of justices, Judges , subordinate judicial officers, and court personnel in order to enhance decision-making skills, encourage uniformity in judicial procedures, and promote fairness, access, and equal justice for all Californians.

2 CJER provides an up-to-date library of resources in a variety of formats, including judicial benchbooks, practice tools, online courses, videos, and satellite broadcasts, as well as a year-round series of orientation and continuing education programs offered statewide on a regional and local basis. CJER GOVERNING COMMITTEE Hon. Theodore M. Weathers, Chair Superior Court of California , County of San Diego Hon. Mary Thornton House, Vice-Chair Superior Court of California , County of Los Angeles Mr. Alex Calvo Court Executive Officer Superior Court of California , County of Santa Cruz Ms. Mary Majich Davis Chief Deputy Court Executive Officer Superior Court of California , County of San Bernardino Hon.

3 Kimberly A. Gaab Superior Court of California , County of Fresno Hon. Janet Gaard Superior Court of California , County of Yolo Hon. Richard D. Huffman Court of Appeal, Fourth Appellate District Division One Hon. Mark A. Juhas Superior Court of California , County of Los Angeles Mr. Kevin J. Lane Clerk/Administrator Court of Appeal, Fourth Appellate District Division One Hon. Jackson Lucky Superior Court of California , County of Riverside Hon. Darrell S. Mavis Superior Court of California , County of Los Angeles Hon. Rebecca S. Riley (Ret.) Superior Court of California , County of Ventura Mr. Michael M. Roddy Court Executive Officer Superior Court of California , County of San Diego Hon.

4 Robert J. Trentacosta Superior Court of California , County of San Diego Dr. Cindy Van Schooten Human Resources Manager Superior Court of California , County of Shasta Hon. Arthur A. Wick Superior Court of California , County of Sonoma Advisory Members Hon. Patricia M. Lucas Superior Court of California , County of Santa Clara Judicial College Hon. Elizabeth G. Macias Superior Court of California , County of Orange California Judges Association Mr. Martin N. Hoshino Administrative Director Judicial Council of California CJER PROJECT STAFF Catherine Seeligson Attorney Amy Ashcroft Communications Editor CFCC PROJECT STAFF Ann Gilmour Attorney Gabrielle Selden Attorney Benchguide CONSULTANTS Hon.

5 Charles Clay Superior Court of California , County of Los Angeles Hon. B. Scott Silverman Superior Court of California , County of Los Angeles Hon. Dale Wells Superior Court of California , County of Riverside Editorial comments and inquiries: Catherine Seeligson, Attorney 415-865-7745 2017 by Judicial Council of California Published September 2017; covers case law through 2 C5th, 12 CA5th, and all legislation to 1/1/2017. California Judges BENCHGUIDES Benchguide 200 custody AND VISITATION I. [ ] SCOPE OF Benchguide II. PROCEDURAL CHECKLISTS A. Jurisdiction Checklists 1. [ ] Initial custody Determinations 2.

6 [ ] Emergency Jurisdiction 3. [ ] Modification of Out-of-State Order B. [ ] Hearing on Request for Order (Order To Show Cause): custody and Visitation C. [ ] Requests for Temporary Emergency (Ex Parte) custody or Visitation (Parenting Time) Orders D. Move-Away Checklists 1. [ ] Initial custody Determinations 2. [ ] Modification of Existing Judicially Determined custody Order III. APPLICABLE LAW A. Parentage Determinations 1. [ ] Statutory Authority to Determine Parentage 2. [ ] Establishing Parentage: Summary 3. [ ] Establishing Parentage: Presumptions a. [ ] Marital Conclusive Presumption b.

7 [ ] Other Marital Presumptions c. [ ] Presumption Based on Holding child Out as Own d. [ ] Presumptions Are To Be Applied on a Gender-Neutral Basis e. [ ] Rebutting the Presumptions f. [ ] Family Code 7611 Presumptions 4. [ ] Parentage by Voluntary Declaration 5. [ ] Parentage by Stipulation 6. [ ] Parentage by Estoppel 7. [ ] Assisted Reproduction California Judges Benchguide 200 2 8. [ ] Resolving Multiple Presumptions of Parentage 9. [ ] Standing to Bring a Parentage Action B. Types of custody Orders 1. Overview and Definitions a. [ ] Legal and Physical custody b.

8 [ ] Sole custody c. [ ] Joint custody 2. [ ] Presumption and Special Rules Applicable to Joint custody Orders C. Jurisdiction 1. [ ] Family Court Proceedings 2. Preemption of Family Court custody Jurisdiction a. [ ] Juvenile Court Jurisdiction b. [ ] Tribal Jurisdiction Under Indian child Welfare Act 3. [ ] Interstate Disputes 4. Initial custody Determinations a. [ ] Grounds for Jurisdiction b. [ ] California Is child s Home State c. [ ] No Other Home State; California More Appropriate Forum d. [ ] Other Courts Having Jurisdiction Deferred to California e. [ ] Jurisdiction in No Other Court 5.

9 [ ] Declining Exercise of Jurisdiction a. [ ] Simultaneous Proceedings in Another State b. [ ] Inconvenient Forum c. [ ] Unjustifiable Conduct of Petitioner 6. [ ] Emergency Jurisdiction 7. Modification Jurisdiction a. [ ] Modification of Prior California Order b. [ ] Modification of Order of Another State c. [ ] Duty to Communicate in Simultaneous Proceedings d. [ ] Proceeding To Enforce Order in Another State e. [ ] Declining Exercise of Jurisdiction To Modify Order 8. [ ] Venue D. Initial custody Orders 1. [ ] Temporary or Pendente Lite Order 2. [ ] Temporary Emergency (Ex Parte) Order E.

10 Guidelines for custody Determinations 200 3 custody and Visitation 1. [ ] Best Interest of child a. [ ] child s Health, Safety, and Welfare b. [ ] Contact With Parents c. [ ] Dual Public Policy Concerns When Determining Best Interest of the child d. [ ] Statutory Preferences e. [ ] child s Need for Bonding, Stability, and Continuity f. [ ] History of Drug or Alcohol Abuse (1) [ ] Corroborative Evidence of Drug or Alcohol Abuse (2) [ ] Drug Testing g. [ ] History of Abuse (1) [ ] Definition of Abuse (2) [ ] Corroborative Evidence of Physical Abuse (3) [ ] Family Code 3044 Presumption Against Awarding custody to Domestic Violence Perpetrator (4) [ ] Finding of Domestic Violence Within the Past 5 Years (Fam C 3044) (5) [ ] Rebutting Fam C 3044 Presumption (6) [ ] child Sexual Abuse Allegations 2.