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The Work is Just Beginning in Family Law


Teenagers, sensing the end of the school year and wanting to be outside more with the nicer weather, are often said to have spring fever. This means it is harder to do homework and concentrate in class.

But in family law matters, particularly in custody matters, things are just heating up. For example, when people with children move, they often do so during the summer so as to avoid any interruption in the school year. If the parents are divorced or separated, however, the move by one parent will usually mean an adjustment in the custody and visitation arrangements for both parents. In California, if a court allows a parent to relocate out of state with the minor child or children, there is a 30 day “stay” from the time the order is entered until the parent and child or children actually get to relocate.

This 30-day rule, along with the fact that courts in California have busy calendars, means it is important to get started early with move-away plans so that the move, if it is allowed, can actually take place before school starts up again. As an aside, I recall growing up that school did not start until the Wednesday after Labor Day. (The Tuesday was a meeting day for the teachers.) But that was a long, long time ago, and now schools start in late or even mid August.

And in California, parents who cannot agree on a sharing plan, have to go to mediation before their court date. In San Diego County, if the parties go to mediation but are unable to work out a plan, the mediator writes up a report for the judge with recommendations. The parties and their lawyers get to see that report.

Mediation, in a way, is good, because it allows a couple to talk with someone who is trained in mental health, or some allied field, for a considerable amount of time to work out their differences. But forcing people to attend mediation means that the hearing on custody and visitation has to be set for enough in advance, so that the mediation can take place and a report can be written for the judge to read before the hearing.

Of course, if the parents agree on a child sharing plan, they can simply file a written agreement with the court and bypass mediation. But when one parent wishes to relocate with the child or children, the remaining parent is often faced with the prospect of a drastic change in her or his custody or visitation time. Stated differently, some differences can easily be worked out in mediation. For example, if one parent believes that weekend visitations should include Mondays when there is a holiday and the other parent is firm that weekends mean only Friday to Sunday, a skilled mediator may be able to talk one parent into agreeing with the other or getting the parents to agree on extending weekends but only for half of the holidays. This is not earth shattering.

Now take a move-away to Los Angeles. You still may be able to work something out. Weekend visitations are still a possibility. Maybe the parents can split the driving and agree to exchange the children at the half way point. But if the move is to New York, there are going to be major changes. Compromise is difficult. Either relocation is going to be allowed or it is not. The judge cannot split the baby and allow relocation, but only to, say, Kansas City.

So, depending on what the dispute is, any request to have the court make orders on custody and visitation will almost definitely involve mediation, and this will mean a hearing that will be set further out than a hearing that has nothing to do with custody and visitation, like a hearing on spousal support where there are no minor children.

This is not to say that you can’t get lucky. If both parents agree, all they have to do is have the stipulation put in writing, using the right words and addressing the mandatory topics required by the California Family Code. If the move is out of state, the party staying behind can probably agree to waive the 30-day rule discussed above.

But few people are willing to sign such a stipulation, at least without first thinking about it. That’s why it makes sense to relocate now rather than waiting until you find out that your former partner is not going to sign the paperwork.

What I would do is file the motion so that I could reserve a date with the court. Then, with a court date staring the other side in the face, I would try to write up a stipulation if I felt the parties were close to an agreement. If the agreement does get signed, when you file the document you just tell the court that the case has settled and the hearing will be canceled.

The post The Work is Just Beginning in Family Law appeared first on Andy Cook Law.


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