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Right of First Refusal in Custody Orders

A right of first refusal is common in contracts, but not as well known when it comes to child custody in California. When a right of first refusal is included in a custody order, it creates obligations when a parent is unable to care for a child and would typically contact a babysitter.

Instead of asking a neighbor, relative, or sitter to care for the child, the parent needing assistance is required to contact the other parent and give them the opportunity to watch the child before they ask anyone else. Some people refer to this provision as a “first right to care for a child” instead of first right of refusal.

A right of first refusal can be helpful in some custody situations and problematic in others. It is a good idea to discuss the potential need for a right of first refusal with your custody attorney. Here are some factors to keep in mind.

First Right of Refusal Can Be Structured in Different Ways

Parents can establish a structure that gives parents a first right of refusal in a great number of instances or only in specific situations. For instance, they might establish an order that requires the custodial parent to give the other parent to watch the child if the custodial parent will be away from the child for a certain number of hours or overnight. Or the order might specify that before the parent can enroll the child in daycare, that parent must give the other parent the first opportunity to provide care for the child.

Parents can agree to include right of first refusal provisions in their custody stipulation that then becomes part of the court order. Or if one parent wants a right of first refusal and the other does not, then the parent seeking the order will need to convince a judge that the right of first refusal would serve the child’s interests.

Of course, parents who cooperate together can establish their own understanding where they agree to call each other first in certain situations. This type of arrangement does not have the force of a court order, but it often results in less stress and friction for the child.

When a Right of First Refusal May Be a Good Idea

There are instances when a parent requests parenting time that they are simply not prepared to provide. For instance, a parent might request a 50/50 custody schedule to keep child support obligations low or just to prevent the other parent from having a greater share of time with the child. If that parent has a work schedule that prevents them from actually being with the child 50% of the time, the child may be placed with a babysitter for considerable periods. In that type of situation, a right of first refusal can allow the child to spend more time with a parent instead of being passed off to babysitters.

Generally, a right of first refusal is most helpful when it is only triggered by an overnight stay. For instance, parents might agree to give each other the first right to provide care if the child needs overnight care for more than two nights. Or the agreement might specify that if the custodial parent must be away for one night or more and the grandparents are unable to care for the child, then the custodial parent must give the other parent the right to provide care.

Problems with a Right of First Refusal in Custody Situations

When parents insist on strict adherence to the right of first refusal rules, the situation can become complicated and stressful. For example, if a parent’s car breaks down when they are supposed to pick up the child from school, instead of asking a neighbor or friend to pick up the child, they may be required to attempt to contact the other parent instead, and by the time they reach the other parent, there may be no one else available to assist the child if the other parent is not able to leave work and get the child.

Or if a parent exercises their right of first refusal to take the child for a night, then the other parent might demand that the parent give up a future night to keep parenting time even.

An Experienced Attorney Can Help You Establish the Right Custody Arrangements for Your Family

Before making a decision about whether you want to include a first right of refusal in your custody order, it is helpful to discuss the details of your situation with your attorney. At Holstrom, Block & Parke, APLC, our Certified Family Law Specialists and associates have extensive experience with first right of refusal clauses in custody arrangements, so we can describe the situations where these clauses have proven helpful and situations where they cause more problems than they solve.

We invite you to schedule a free consultation to learn more about the ways we can help with divorce, custody, and other family law matters. Just call 855-426-9111 or contact us online to get started.

Child Custody

How is child custody determined in California?

Making decisions about child custody is a crucial aspect of divorce proceedings in California, and of course it is also critical for parents who never married. At the heart of it, the law focuses on what is in the best interests of the child. 

If parents can't agree on a custody plan, the California courts will step in. When making these determinations, they consider various factors to ensure the child's well-being. These factors are important to keep in mind whether you are devising your own plan or allowing the judge to make the decisions.

 

Types of Child Custody in California

In California, child custody arrangements can vary widely based on the circumstances of the parents. The state categorizes child custody into two primary types, physical and legal. These types of custody can be shared or issued solely to one parent.

1.Physical Custody: This type of custody addresses the child's living arrangements. When a parent has physical custody, it means the child resides with them for a specific duration, whether it's for a few days a week, alternate weeks, or even longer intervals.

  • Joint Physical Custody: Under this arrangement, the child lives with both parents, splitting time between their residences. The split doesn't necessarily have to be equal, but both parents have significant periods with the child.
  • Sole Physical Custody: Here, the child primarily lives with one parent. The other parent may or may not have visitation rights. In situations where they do, it's generally outlined in a visitation schedule.

 

2.Legal Custody: This pertains to the rights and responsibilities of making significant decisions about the child's upbringing, such as their education, medical care, religious instruction, and other welfare-related choices.

  • Joint Legal Custody: Both parents share the responsibility of making major life decisions for the child. Even if the child lives with one parent more than the other, both parents have an equal say in these crucial choices.
  • Sole Legal Custody: In this scenario, only one parent has the authority to make major decisions about the child's life. This could be due to various reasons, such as one parent being deemed unfit or the parents being unable to make joint decisions due to high levels of conflict.

Navigating the nuances of child custody in California requires a sound understanding of the state's laws and a clear sense of what's best for the child. 

 

Factors Influencing Custody Decisions in California

In child custody cases in California, the overarching principle is the child's best interests. Legally, this is not a vague or arbitrary concept that it might first appear to be. Over time, the standard has been fleshed out to include a consideration of several critical factors including:

  • The Child's Age and Health: Younger kids may need stable routines. Health needs can influence which parent is better equipped to provide care.
  • Emotional Ties: Courts consider which parent has a deeper emotional bond with the child and who has been more involved in daily life.
  • Parental Capabilities: Beyond love, this encompasses financial stability, a safe environment, and the parent's physical and mental health.
  • History of Violence or Abuse: A record of abuse can heavily influence custody decisions, prioritizing the child's safety above all.
  • The Child's Connection to Their Environment: Uprooting a child from familiar settings like school or community can impact custody outcomes.

It’s vitally important to ensure that your attorney has all the information regarding factors that weigh in your favor. For instance, if you’re the parent who puts the child to bed every night, that detail can be very important. 

 

Considering the Child's Preferences

In California, if a child is mature enough (typically around 12 years or older) and wishes to express a preference in custody, the court might consider their opinion. However, it's only one of many factors, and the child's preference does not guarantee a specific outcome.

 

Modification of Child Custody in California

Living circumstances evolve, and situations may arise post-divorce that necessitate a change in the custody agreement. In California, you can request a modification if there's a significant change in circumstances, like a relocation or a change in the child's needs. It's crucial to approach these modification requests with the guidance of knowledgeable attorneys to ensure the child's best interests remain paramount.

 

Ensuring the Well-being of Your Child with Holstrom, Block & Parke, APLC

Child custody decisions are among the most emotionally charged in the divorce process. We understand that you want the best for your child, and our team at Holstrom, Block & Parke, APLC, is here to support you every step of the way. 

If you're navigating this complex area, lean on a knowledgeable team to guide you. Call Holstrom, Block & Parke APLC today at (844) 237-5791 or contact us online to schedule a consultation with a supportive child custody attorney in California.

Child Custody

Understanding and Preparing for a Move-Away Case

A Move Away case is one where a parent seeks to relocate to some other geographic area with a child they share with a parent who will remain local. Recently, there has been a dramatic increase in requests for consultations and representation in move-away cases. Some of the requests are due to the simple desire to leave California and reside in another state. Others have job opportunities in another state, or would like to be closer to family. We’ve also received requests from parents who would like to oppose the move-away request by the other parent. Whatever the case may be, understanding the intricacies and legalities of move-away cases is paramount to prevailing in such a case and often that is concurrently doing what is best for the child.

What is a move-away case?

A move-away is a particular type of custody case where two parents have a dispute or disagreement about what's going to happen with their kid(s) when either parent is going to relocate and there is an existing custodial arrangement. For example, they've got a schedule, maybe the parties have been separated for a couple years, or even a few months, but they have an existing de facto or status quo custodial relationship. The arrangement, or custodial relationship, could be 50/50, it could be 80/20. Or it may not be a percentage of time, but something like a set number of days during the week, and alternating weekends. When the kids are typically younger in age it is optimal, from a psychological developmental perspective, for a shared arrangement to grant more time to the parent who has more capability to be home and care for them (if such a circumstance exists).

Whatever the very legitimate and appropriate reason for the existing arrangements, whether by court order or not, the court will make a decision, or the parties have made a decision, that the existing arrangement is in the best interest of the child. A move-away case is a significant undertaking that happens with some frequency--And that frequency is increasing with today’s societal mobility, economic uncertainty, the ability to find more “virtual” employment opportunities, new relationships being formed from long distance, and ever changing migration patterns.

There is an abundance of law from the state of California, that relates to how the court should handle these cases, so that they're handled consistently the same. Yet the tactics and strategies exist that increase the probability of success, whether seeking to relocate with the child(ren), or opposing such a move.

How does a move-away case differ from a visitation case?

Custody time (also called “time-share”) is a plan for how the parents will share time with the children. This may also be referred to as “custody time” or “visitation” or the like. It is a shorthand way to refer to the amount of time a child is with each respective parent. Such court orders vary, depending on the best interest of the children, the situation of the parents, and other factors. If the case is more about minimal schedule changes, it's not a custody case. It's what we call a time-share type case. These cases are typically easier to resolve because we're not talking about a dramatic change in a custodial arrangement.

What many parents fail to understand…

The foundation for every custodial arrangement is what is in the best interest of the children, which includes relocation. So often, parents talk about “my time,” and they use the word “my kids”. They assert that they are entitled to “their rights”. Those parents are incorrect, and will face tremendous challenges if they are involved in litigation. Custody matters will always be about what's best for the children. The law starts from a presumption that frequent and continuous contact with both parents is what is best for the children. Many people confuse that to be a presumption that this naturally equates to a 50/50 arrangement. This is simply not true. There are so many factors involved in determining what is best for the child, outside of the parents’ opinions. The decision needs to be carefully made by the court in order to avoid having detrimental effect on the children, or impede the other parent's ongoing relationship and access to the child.

Some things courts will consider when determining move-away requests:

  • Which parent (if either) has an actual, or de facto, primary custodial relationship prior to the requested move
  • The good faith reason for the move (ex. job opportunity) -not designed to simply get away form the ex spouse (this is in turn mitigated if there is a history of Domestic Violence)
  • Distance of the move being considered/requested and the logistical issues raised include travel time, cost, etc.
  • The child’s age can be a large factor in the judge’s decision as it may be more difficult for younger children who haven’t had proper time to develop parent/child relationships-or older children who while more physiologically and psychologically developed and bonded have concurrently formed strong bonds with friends, schools, extended family, etc.
  • Any history of violence within the household(s)
  • The current and historical relationship between the parents
  • Ability to maintain proper medical treatment at both locations
  • The parents’ ability to Co-Parent or a lack of willingness to do so
  • The “best interest” of the child
  • The child’s preference and feelings about the move (depending upon the age)
  • An overall assessment of the “detriment” of the move. This issue was given overriding importance in the most recent California Supreme court case on this subject. In such cases, even where a permanent custody order is in place, the custodial parent’s right to relocate with a child remains subject to the changed circumstance rule. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072) 1088-1089 (LaMusga).

It is important to note the individual elements referenced above are not necessarily equal, nor determinative. The court will look at the totality of the circumstances in assessing the best interest and detriment.

Here in Southern California, a classic example of a move-away could be any distance greater than 30 miles, say Orange County to Riverside County. While this doesn’t seem like a huge distance, commute time needs to be taken into consideration. The freeways are often heavy with traffic and while the distance isn’t tremendous, the time it takes to travel between the two areas could frequently be over two hours on any given weekday. The commute is going to impede a parent from being able to spend enough quality time with the children. More importantly, how is that drive going to affect that child? Is it going to affect the ability of a parent to pick up on Friday evening? This kind of move would also potentially mean a change in school districts and various other factors.

Here’s where it gets complicated…

Once the relocation is defined as a move-away, things can get really, really complicated. Sometimes the status quo may not contain a court order that grants parents the ability to relocate. Some attorneys who craft judgments (and some people without attorneys) don't put all of the necessary language outlined in their judgments into their court orders, relative to custody. As is such, it may be possible that a parent could move and then change visitation later on. It's also possible that doing so could have negative consequences. This is one reason why it is critical that you have a discussion with a competent family law attorney to talk about your options, in your case.

What if there isn’t a court order in place for custody?

The following is a hypothetical situation: Two parents are unmarried and they're already living apart. There is no court order in place for custody of their child. One parent decides that they want to relocate with their child. They decide that they're going to go ahead and move to New York without consulting an attorney.

Guess what is likely to happen in this instance.... The other parent (more likely than not) is going to run into court and ask for an emergency order to have that parent, either not relocate with the child or immediately return the child. The parent who has already moved to New York, has probably settled in, secured employment and has started their new life. However, the court can effectively change the custodial arrangement because the first parent acted improperly and failed to do things the right way.

It's imperative to get a plan in place and follow the plan. The commonly used colloquialism that sometimes “It’s better to ask for forgiveness rather than permission” may work--or may lead to disastrous consequences.

How does a parent looking to move away get permission if they need it?

First, they will need to create a paper trail and reach out to the other party stating intent to move. Ask them what their thoughts are on the matter. It may be received well, it may not. Regardless, communicating the intent, (or possible intent,) in writing is always the first step. If they don't ask and just rush to court, then the court is going to think badly of that person for not asking or trying to work it out with the other parent. This is true whether the parents have court orders or not. Someone who is still in an intact relationship and simply takes off in the middle of the night with the child to a far away place is equally subject to an adverse consequence. While a history of Domestic Violence may mitigate this, it may not eliminate it.

A key point to keep in mind is that the court has no authority to tell a parent that they cannot move. Every adult in the United States has an absolute, unrestricted right to travel. The government cannot say that a parent can't move; that they have to stay here and take care of the children. In fact, what the court does when they engage in a move-away, is start with the presumption that the move is happening. They make orders based upon that expectation. The order will either be that the children move with the parent who is relocating, or that they stay with the non-moving parent. Then arrangements for visitation will be made accordingly.

Move-away cases are not a quick and easy process

Whether or not there is a custody order in place, a plan is needed. After step one, it might be time to file the move-away request with the court. If it is a full on move-away case, it's probably going to take quite some time to get the hearing on it and get it done. That means going to court, certainly doing mediation at court, possibly doing a custodial evaluation, setting the matter for an evidentiary hearing with witnesses and cross examination, dealing with cancellations and postponements that are rabid in the court system, particularly with COVID, and finally, having the hearing and getting a court ruling. And even if the parties get a court ruling, thee law of California mandates that the parent is not allowed to move for 30 days after that ruling. This can really drag out and parents really need to plan for the long haul.

How long does it take to resolve a move-away case?

This depends on the courthouse. If the case is being processed within the public court system, then parents at the mercy of the court. There may be shutdowns because of COVID. It may also take awhile if a psychological evaluation, referred to as a “730 Evaluation,"  is required. There may be a trial set for three days on a move-away case, and then some other case bumps it, and it gets postponed for another two or three months. A short time period might be six to nine months, while a long time period might be a year and a half or more, because of how the legal system works. This is why it is important to get started with the process as soon the parent thinks that they will be moving. Parents should always make a plan and seek legal counsel before they accept a job out of state, buy plane tickets, or hire movers. Then again, bad advice can set you back both in time and in the ultimate likelihood of success.

No two move-away cases are alike...

Please remember, every move-away case, like every custody case, is different. There are unique aspects of each and every one. The one thing that always remains the same is that ultimately, this is about what's best for the children. If the parents have a good co parenting arrangement, that can serve as a basic foundation for resolving things amicably. However, parents should only do so after consulting with competent counsel.

If you are contemplating a move and want to do things the right way, please reach out to us as soon as possible. Our team has extensive experience with move-away cases and we can help you plan for this impactful life change in a way that keeps your children the priority and offers the best possible outcome for your family.

PLEASE NOTE:

The material and information contained on this website is for general information purposes only and is not intended to be legal advice. It does not create an attorney/client relationship in any way, shape or form. Holstrom, Block and Parke are attorneys at law, licensed to practice in the state of California and have based the information presented on US laws. All cases are different and nothing in this content is intended to suggest any particular result for your matter. Holstrom, Block and Parke has no control over and accepts no liability in respect of materials, products or services available on any website which is not under the control of Holstrom, Block and Parke. Certain links in this website will lead to websites which are not under the control of Holstrom, Block and Parke, APLC. When you activate these website links, you will leave the Holstrom, Block and Parke website. Therefore, we have no control over and accept no liability in respect of the materials, products or services available on the third party websites, which are not under control of Holstrom, Block and Parke. There is no substitute for seeking out advice from a competent Family Law professional and you should always consult with an attorney before you rely on this information.

After Divorce / Child Custody / Divorce / Family Law / Parental Rights

Tips For Creating A Holiday Parenting Plan or Order

It's the most wonderful time of the year...it’s also the busiest and can be the most stressful time for families with parents who are separated or divorced, and have to figure out how to make sure that the children spend time with both parents. Creating a holiday schedule doesn’t have to be a source of stress for parents and children. In fact, the purpose of having a schedule or court order in place ahead of time is to alleviate frustration, confusion and chaos. These things enable both parents to plan for their major holidays respectively, while ensuring that the children have adequate time with each parent and the sense of security that comes with having a well communicated, mutually agreed upon plan. Children have so many expectations and emotions tied to holidays, due to the traditions and memories created. No child wants to spend the holidays, after a separation or divorce, listening to parents argue, being put in the middle of parental squabbles, or being made to feel guilty for spending time with one parent over the other parent. Parents should work together to mitigate anxiety and negative emotions for their children, while preparing them for new traditions and schedule changes in a way that reassures them that the holidays will still be memorable and a positive experience. The Custody Queens have some valuable tips for parents who want to navigate the holiday season as peacefully as possible by creating a plan that works for everyone, especially the children.

  1. Plan ahead. Do not wait until the last minute to start a conversation with the other parent. This needs to be well thought out and planned for in advance of the holiday so that plans can be communicated with the children.
  2. Be specific in crafting court Orders, but remain open to flexibility in practice. Having a specific court Order can help manage expectations and mitigate stress. On the other hand, remember life happens and being flexible with the other parent can be more practical and help foster a genuine co-parenting relationship.
  3. Accept that holidays will generally be split. This is really a conversation about how to arrange the time. Some suggestions on how to do this are:
    1. Alternating holidays (i.e. In odd years one parent has Christmas Eve and the other parent has Christmas day. In even years, the parents switch days.)
    2. Split the day between both parents (i.e. The first half of Thanksgiving Day is spent with one parent, the second half of Thanksgiving Day is spent with the other)
    3. Schedule the holiday twice. As parents, we can observe holidays on alternative days. For example, often separated parents observe their child’s birthday on a different day so that both parents get to celebrate. What child doesn’t want two birthdays?!
  4. Address travel. Will arrangements be needed for transportation and what time will need to be allotted for this? Who will be making these arrangements and paying travel expenses?
  5. Keep the children out of it. Even if you disagree, do not bring your children into the dispute—children want to celebrate holidays, not inherit your stress.
  6. Itemize which holidays need to be addressed in the Order. Some families celebrate only major holidays; others celebrate additional days/school break days/etc…Consider the type of schedule you have. If you exercise joint physical custody, do you really need to recognize all non-major holidays? The answer is sometimes yes. However, consider that with a joint physical arrangement, exercising non-major holidays does not provide you with additional time—it provides you with adjusted time that may cause unnecessary disruptions to an otherwise consistent schedule.
  7. Be efficient. Consider negotiating/agreeing on the entire year’s holiday/special day schedule at the same time. There is inevitably going to be more passion related to the holiday which is right in front of you (i.e. Christmas Eve or Christmas Day). Rather than having 8-9 different negotiations every time a holiday is approaching, just sit down, and agree on whatever split works best for your family for the entire year. If you don’t have your preferred schedule for this year, ask to reverse the schedule on alternating years so that it is consistent and your children get the opportunity to experience each holiday with both sides of the family.
  8. Special requests. If the other side has a request, do not refuse it just for the sake of refusal. Consider asking for an accommodation on your own special requests when negotiating.
  9. Identify your family’s unique needs. If you have them, include them in the plan or Order.

Now is the time to get your plan or orders in place to ensure that everyone has a peaceful holiday. For more tips on thriving during the holiday season, please read our blog post on Tips for Co-parenting Around The Holidays. With good communication, a willingness to compromise and proper planning, your holiday can be a lot less stressful and a lot more merry. Be sure to follow us on social media for daily posts and more.

PLEASE NOTE:

The material and information contained on this website is for general information purposes only and is not intended to be legal advice. It does not create an attorney/client relationship in any way, shape or form. The Custody Queens, a division of Holstrom, Block and Parke, are attorneys at law, licensed to practice in the state of California and have based the information presented on US laws. All cases are different and nothing in this content is intended to suggest any particular result for your matter. Custody Queens has no control over and accepts no liability in respect of materials, products or services available on any website which is not under the control of Custody Queens. Certain links in this website may lead to websites which are not under the control of Custody Queens, or Holstrom, Block and Parke, APLC. When you activate these website links, you will leave the Custody Queens website. Therefore, we have no control over and accept no liability in respect of the materials, products or services available on the third party websites, which are not under control of Custody Queens. There is no substitute for seeking out advice from a competent Family Law professional and you should always consult with an attorney before you rely on this information.

After Divorce / Child Custody / Co-Parenting / Divorce / Family Law

What Family Courts Must Understand About Children with ASD

Changes in how autism is defined means more children more eligible for diagnosis. Efforts in professional communities in the past 15 years have improved our understanding of ASD. More children are being evaluated, there are more avenues of support for children and their families. Subsequently, professionals working in family law courts have more exposure to children with ASD as well

Co-Parenting / Child Custody / Child Support / Family Law

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