Summer, BBQ’s and Custody disputes
Avoid the disputes and focus on fun!
The beginning of summer is upon us. This brings with it a new set of issues for separating and divorced parents with children. Let’s not forget summer is a time for children to relax and unwind, not suffer distress due to high conflict custody exchanges and emergency court appearances.
At Lavinsky Law we believe in avoiding distressing situations for families and recommend planning far in advance of holidays, and vacation periods such as summer. The California Judicial Counsel provides a helpful form (FL-341c) that can be used as a guide for figuring out holiday schedules, year round. Once the parties agree, a Stipulation and (Proposed) Order can be submitted to the Court for signature. With the Court’s signature, a Court Order is in place. Working with the other parent in advance can also help a party see when Court intervention is necessary. If the other party is not willing to negotiate a fair schedule, a party should file a Request For Order long in advance of the holiday period. This is the only way to avoid last minute attempts to obtain emergency Orders the Court is unlikely to grant. Ex Parte applications must comply with California Rules of Court, 5.51.
Why is it important to agree or file a Request For Order far in advance?
If a party has failed to meet the requirements for service of a duly noticed Request for Order per 1005(b), in advance of a particular departure date, the only remaining option is to obtain an order on an emergency Ex Parte basis. However, unless a true emergency exists to a child as defined by Family Code 3064, a Court will not make such an Order. The Court does not consider it an emergency if a parent has failed to properly plan and obtain any requisite consent. Unless a true emergency basis exists, the Court will deny relief, regardless of airplane tickets having been purchased, the expense of a trip, and the length of time the trip was planned.
Unless a true emergency basis exists, the Court will deny relief, regardless of airplane tickets having been purchased, the expense of a trip, and the length of time the trip was planned.
What about Passports?
Passports are another hot issue which should be planned for far in advance of a departure date. If the parties have a Final Judgment the prevailing document should detail how notice of travel is provided and consent obtained (if necessary), who keeps the passports and the method for exchanging for travel, or a sole custody order excluding a parent from these requirements. If both parties have deep distrust of the other, the Clerk of the Court is empowered to hold the passport of a minor child upon an Order from the Court.
If there is no Agreement in place detailing who maintains the passport, and how consent for travel is agreed upon, long in advance of the travel a party should file a Request For Order with the Court. In this Request, a party should seek the specific orders necessary to confirm the exchange of all travel documents and the release of the minor children, to avoid any further problems. A luxurious trip to Europe does not excuse the emergency requirements necessary for the Court to consider a matter an emergency, thus justifying emergency Orders.
A luxurious trip to Europe does not excuse the emergency requirements necessary for the Court to consider a matter an emergency, thus justifying emergency Orders.
If the minor children do not have passports, there are specific procedures, time limits and parental authorization requirements for obtaining same. If the other parent will not consent, a Court Order is necessary to satisfy the requirement that a party has sole authority to obtain the passports sought. This process should be started long in advance of the travel to ensure time for a properly noticed Request for Order, so to eliminate any need for an emergency Ex Parte filing, which may very well be denied by the Court.
Camp: Can the children go? Who must pay?
When new clients inquire as to this issue, we first look to the prevailing Custody Agreement, assuming one exists with orders as to who makes payment. If the matter has not been addressed and the camp is during the non-objecting parent’s custodial time, there is not an issue other than to provide proper notice to the other side. As to payment, it will usually be the responsibility of the parent sending the children, unless, a specific provision exists in a temporary or permanent custody order that the parents should split payment, etc.
If the Camp is to occur during an objecting parent’s custodial time, and there is no written provision for camp attendance and/or payment, it is unlikely that the Court would order the child to attend unless the camp did not interfere with the other parent’s custodial time in any manner.
Plan, Plan, Plan!
In conclusion, while many parents may dislike the other and expect to fight, the children pay the ultimate price. Studies show that custody exchanges are the most stressful times of the lives of these children. While failure to plan by one party may cause a child to be deprived of a wonderful opportunity, this should not be compounded by parents who are mean, disrespectful and nasty to each other. A child’s exposure to the chaos of their parents is far more damaging to a child than missing out on an experience, resulting from one parent’s failure to plan, and the other parent’s foolish refusal to concede.