When Does California Have Jurisdiction to Modify a Child Custody Order?

If a California court is called on to modify a custody determination made by a court of another state, it generally cannot modify the other state's custody determination unless the facts warrant temporary emergency Fam C §3424. Generally, the state that made the initial custody determination will have exclusive, continuing jurisdiction. Fam C §§3422-3423; Marriage of Paillier (2006) 144 CA4th 461, 469, 50 CR3d 459. The criteria for initial custody jurisdiction under the UCCJEA are set forth in Fam C §3421(a)-(b). jurisdiction.

However, a California court may modify an initial or subsequent order of another court if: (1) the California court has jurisdiction to make an initial custody determination under Fam C §3421(a)(1) or (a)(2); and (2) either of the following conditions is met:

· The court of the other state determines that it no longer has exclusive, continuing jurisdiction under Fam C §3422 or that a California court would be a more convenient forum under Fam C §3427; or

· A California court or a court of the other state determines that the child, the child's parents, and any person acting a parent do not presently reside in the other state. (Fam C §3423):

“The court that first enters a custody decree on a matter gains exclusive jurisdiction, but that jurisdiction continues only until all parties and the children that were the subject of the decree have left the state. “ Novatny v. Novatny, (Ind. Ct. App. 2007) (citing In re Custody of A.N.W., 798 N.E.2d 556, 561 (Ind. Ct. App. 2003) , trans. denied.)

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Who Gets Custody When Child is born out of wedlock.

The father of a child born out of wedlock has the same parental preference rights to custody as he would had he and the mother been married, provided the father has diligently and timely pursued his claim. The key is that the father must proactively pursue the parental rights to which he is entitled. Generally, the mother will take custody of the child immediately following birth, and the child may live with the mother for an extended period of time while the father will have to pursue legal action to assert his parental rights. At least one court has held that in the ensuing custody proceeding, the standard to be applied requires the father to prove that a change of custody will materially promote the child's best interests. As always, the ultimate question is "what is in the best interest of the child?" The resolution could be primary custody to the father or split custody if that is what is best for the child. Find out more about Child Custody Modification.

Legal Tips for Child Custody Modification

Generally, a party seeking child custody modification must first file a motion to modify in the original case. The modification documents should specify why a change in circumstances exists and what changes are sought. Some states also require a supporting affidavit or declaration. This affidavit should include the specific facts supporting the parties' allegation in the petition of how the child is being harmed in the present environment. The documents should also state how the child would benefit from the requested change.

If possible, a party seeking a child custody modification should also submit supporting affidavits from medical personnel, teachers, neighbors and any others who have witnessed events demonstrating the undesirability of the current custody arrangement. If the basis for the change in custody is child neglect, affidavits of social workers, neighbors, babysitters, or school personnel with personal knowledge of the neglect should be included. Likewise, if the basis is some type of abuse, an affidavit of a physician, nurse or other medical personnel describing the injuries and the type of treatment given should be included. CLICK HERE to Find Out More.

5 Key Tips When You Go To Court

Believe it or not, most non-lawyers do not know how to properly present and conduct themselves in court. Below are 5 key points to follow when going to court. Although they may seem like common sense, most people do not follow some or any of these crucial tips. And remember, if you are going to court to fight for the custody of your child, or to increase your visitation, (modify parenting time) or lower or increase child support, every little thing can add up to make a big difference.

Follow these courtroom tips:

1. Arrive in court early- First impression is so important. If you show up to court late, and the judge has already called your case, what do you think the judge will think? The judge is likely to think that you don't care enough about your case to show up to court on time and that you don't have respect for the court's time. What a bad first impression. Avoid this mistake and show up to court early.
2. Dress professionally- You don't need to wear a suit (although you can), but dress professionally. Again, first impression with the judge is vital.
3. Be prepared- Bring all of the documents and evidence that you may need to court. And have it well organized so that you are shuffling through papers during court to find something that the judge may deem relevant. Also, bring 2 copies of everything to court- one for the judge and one for the other party.
4. Be polite and professional- Just as you don't want to be interrupted when you are talking, show everyone else the same courtesy. NEVER interrupt the judge when he/she is talking. Remember, the court is going to do what is in the best interests of the child. You want the court to know that you are worthy of the responsibilities you are requesting. And always address the court when you speak, and refer to the judge as "Your Honor."
5. If the Judge asks you a question, answer the question- This tip sounds obvious, doesn't it? Amazingly enough, when asked a question, people often give long, drawn out answers, yet never answer the questions asked. As I always advise clients, "If the judge asks you what time it is, don't tell him how to build a clock."

Follow these tips and you will be giving yourself a better chance of the judge granting your request. And always remember that the focus of any child custody hearing is what's in the best interests of the children. CLICK HERE for professional legal help from Child Custody experts.

Claiming Child on Taxes

Can you claim a child if you agree with your ex-spouse to claim him 1/2 the year and he claims him the other 1/2 of the year?
The child dependency exemption cannot be split. Typically, the custodial parent is treated as the parent who provided more than 50% of the child's support. This parent is usually allowed to claim the exemption for the child if the other exemption tests are met. However, the noncustodial parent may be treated as the parent who provided more than half of the child's support if certain conditions are met. There are circumstances where a court may allow the deduction to be taken by each parent on alternating years.

Can a court order determine who takes a child for a deduction? Does the court order supersede the IRS requirements?
Federal law determines who may claim a dependency exemption. A determination by a state court judge is still subject to the IRS requirements regarding deducting a child for income tax purposes.

Choices for granting custody and visitation rights

While the laws vary from state to state, the principles of child custody and visitation cases are very similar throught the United States. The court may give custody to one or both parents, or, in some cases, to another adult based on the best interests of the child. Considerations include the child's health, safety and welfare, as well as any history of abuse by one parent. For custody to be given to someone other than a parent, however, the court would have to believe that giving custody to either parent would be detrimental or harmful to the child. Again, the judge will focus on what is in the best interests of the child.

There is common terminology used in most states (i.e. Texas uses different terms such as conservatorship):

• Joint legal custody. Here, parents share the right and responsibility to make important decisions about their children's health, education and welfare. Such decisions might include, where the children will attend school, what type of school they should attend or whether they should get braces on their teeth.


• Sole legal custody. Here, only one parent has the right to make decisions related to the health, education and welfare of the children.


• Joint physical custody. Here, the children spend time living with each parent on a regular basis. However, this does not necessarily mean that the children must spend equal amounts of time with each parent, just consistent and frequent time with each parent.
  


• Sole physical custody. The child lives with one parent and the other parent has visitation. Keep in mind that for the non-custodial parent, it is best to have a set and definite visitation order set by the court so as to avoid problems of when visitation will be allowed.
  

Try to keep in mind that the actual time spent with your children is probably more important than the legal terminology used to describe the arrangement. Also, the specifics of such custody orders can can affect child support as well.

How do I enforce a custody order?

Law enforcement may help you enforce a custody or visitation order, if necessary. You will need a certified copy of the order. The person violating the order could possibly, upon you petitioning the court, be found in contempt of court. If the other parent won't obey the order and these suggestions don't work, you may want to consult an attorney or attorney service.

It is important, too, to remember that your custody plan can be changed if it doesn't work. If your circumstances change, you can return to court and request a change in the parenting plan even if a child custody order has already been established. The key to remember is that the order will not change on its own. If you wish for or need a change in the custody and/or visitation order, you must petition the court to request modification of the order.

The Child Support Mess

For those of you who have had to deal with child support legal issues in the past, you are painfully aware of what a disorganized, and seemingly criminal racket the system is. If you have dealt with child support issues in multiple states, you are probably pulling your hair out just seeing the words "child support."

Believe it or not, the child support agencies throughout the United States are designed to work in cooperation with one another when it comes to managing child support. Obviously, it would not be right if a parent could avoid child support by moving out of state. However, the cooperation among the states when it comes to child support payments is nothing short of of organized (or often disorganized) chaos.

Common scenario: two or more states trying to collect the same child support (i.e. your original court order was out of California, and the paying party moves to Florida. Then the custodial parent moves to Texas). Often, the paying parent satisfies the child support payment, yet one of the states still shows arrears owed. Next thing you know, getting that straightened out with the child support agencies makes banging your head against a wall appear productive.

However, a parent can do something about it. As opposed to most parents who just complain about it for years and do nothing, you can petition the courts to correct the errors and get your child support where it should be. However, you must TAKE ACTION!