Recently in Child Custody Category

May 22, 2014

California Family Code Does Not Preclude a Sperm Donor From Establishing "Presumed Father" Status

medical-doctor-1314902-m.jpgThe California Family Code governs many aspects of family court cases in the state. And many of these statutes apply to matters that affect children, including paternity and child custody issues. In drafting laws affecting children, the legislature has as its primary purpose the best interests of the child. While the premise is basic and simple to understand, sometimes the circumstances surrounding a particular case may complicate matters. Establishing paternity is important for many reasons, most notably for the general welfare of a child, for it is a vehicle through which a child may receive emotional and financial support. Parents who are confronting paternity and related child custody or support issues are encouraged to contact an experienced family law attorney who is fully familiar with the laws and procedures affecting San Diego families.

A recent California case illustrates the complicated nature of, and interplay between, two related paternity statutes. The case involves actor Jason Patric and his former girlfriend, Danielle. While the couple lived together for many years, they never got married. In December 2009, Danielle gave birth to a child that she conceived through in vitro fertilization ("IVF") with sperm that Jason provided to a licensed fertility clinic. There was no declaration of paternity, and Jason is not listed on the child's birth certificate. In June 2012, Jason filed a petition with the court to establish a parental relationship with the child. Danielle opposed the motion, arguing that Jason was a sperm donor within the meaning of the state statute and not the child's natural father as a matter of law.

At trial, Jason provided evidence of his relationship with the child until mid-2012 when Danielle ended her relationship with Jason. But the trial court granted Danielle's motion for nonsuit, finding that section 7613(b) precluded Jason from establishing paternity under section 7611(d). In so holding, the court concluded that under the statute, "There can be no paternity claim from a sperm donor who is not married to the woman who becomes pregnant with the donated semen, so long as it was provided to a licensed physician."

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April 10, 2014

In Custody Dispute, Court Temporarily Prevents Child from Traveling Outside the Country

three-globes-1372599-m (2).jpgWhen a court issues a child custody order, there's a good chance that it will be modified before the children reach adulthood. Parents may consider renegotiating the arrangement every couple of years or so. Changes may occur in the family's life that will precipitate the need to modify the custody arrangement, such as a new job or home or changes in the children's interests and activities. California law requires a judge to approve any alterations to a final custody order. If you have questions about modifying a court ordered custody arrangement, it is critical that you contact a San Diego family law attorney who is experienced in handling such matters in the local courts.

In a recent case, a California court modified a custody order, and in doing so, refused to allow a child to travel with the father out of the country. In this complicated matter, the parents were married in 2005, their only son was born in 2006, and they divorced in 2008. At that time, the parents were awarded joint legal custody of the child. The mother alleged that in 2010, the father halted contact with their son when he moved out of the country to Australia. It seems that the father and son had little communication with one another for two years. In December 2012, the father told the mother that he was coming back to San Diego and hoped to resume his 40 percent share of physical custody of the child.

Believing that this would be detrimental to the child, the mother filed a request for order (or "RFO"), asking for sole legal and sole physical custody of their son. Despite the fact that Family Court Services did not forbid the boy from visiting his father in Australia, the trial court issued a modified custody order, removing the possibility of the child going to Australia until at least June 2014 when a hearing could be held to reconsider the issue. The court granted the father two visits in San Diego for two weeks each, in addition to other visitation privileges. The father appealed the modification order contesting his inability to take the child out of the country, as well as other issues not discussed here.

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March 6, 2014

California Courts and Legislature Address Abduction of Child by Custodial Parent or Guardian

911-776459-m.jpgIn most child custody disputes, parents are trying to determine the most suitable parenting plan for their family. Issues such as physical and legal custody are the most common matters to be resolved. In some cases, one parent may be dissatisfied with the ultimate arrangement approved by the court. And unfortunately, parents who are wholly unhappy with their share of parenting responsibilities have on occasion resorted to drastic measures, such as abducting their children in contravention of the custody order. In order to prepare an arrangement that is in the best interests of your children, it is critical that you contact a local San Diego family law attorney as early in the proceedings as possible.

The child abduction statistics in this country are staggering. According to the US Department of Justice, 800,000 children are reported missing every year in the United States, while an estimated 200,000 are taken or abducted by a family member. One of the most helpful tools in finding abducted children within a quick time frame has been the "Amber Alert" system. Despite the effectiveness of the system, there was a question as to its applicability to abduction by a child's parent or guardian. To address this ambiguity, the California legislature drafted a bill to amend the state Amber Alert law. The law now authorizes activation of the Emergency Alert System even if the abductor is the child's custodial parent or guardian where the child is in imminent danger of serious bodily injury or death.

In a recent court of appeals case, a mother who took her children in contravention of the current custody order was found guilty of two counts of child abduction in violation of the California state penal code. Here, the parties had twins in 1999 and divorced in 2007. At the time of the divorce, the original settlement agreement afforded the parents a right of first option to care for the children while the other parent was away dealing with an emergency. Many years and multiple custody orders later, the court awarded the dad primary physical custody of the twins in 2008.

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February 27, 2014

Quasi-Judicial Immunity Protects Actions by Family Court Child Custody Evaluator

u-s--supreme-court-2-1038828-m.jpgChild custody cases usually present many challenging issues that have the potential to impact the entire family for years to come. Ideally, parents will agree to a parenting plan that satisfies the wishes of both parties. But many cases involve parents with vastly different outlooks on what is in the best interests of their children going forward after a divorce. When there is no agreement between the spouses, a judge in California may decide to appoint a child custody evaluator to conduct a custody evaluation and recommend a parenting plan. And while a parent is entitled to ask for an evaluation, the request may not necessarily be granted. It is also possible that parents will be expected to pay for an evaluation. Parties facing child custody disputes are encouraged to contact an experienced San Diego family law attorney who can help to navigate the process with competence and knowledge of the local laws and procedures.

According to the California court's website, a child custody evaluation involves an investigation and analysis by an expert of the health, safety, welfare, and best interests of children. In a recent court case, the parents were involved in a lengthy and bitter child custody proceeding concerning their two young children. Here, the court ordered the parties to retain the services of a child custody evaluator who would evaluate the circumstances and provide a custody recommendation to the court. Apparently, during the proceedings, the court granted the evaluator the authority to issue interim custody orders pending the court's ultimate review.

The mother brought this action against the custody evaluator alleging negligence, breach of contract and intentional infliction of emotional distress. Among other things, she claimed that the evaluator issued an interim order that restricted access to her children. The evaluator responded by asserting that the acts complained of were quasi-judicial in nature and therefore protected by the common law privilege. The mother argued that the evaluator had no jurisdiction to render an interim custody order and thus, the act was not entitled to immunity.

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February 20, 2014

Challenge to Modification of Custody Order is "Moot" Once Child Turned Eighteen

children-crossing-1319861-m.jpgWhen people think about child custody disputes, most often the concepts of legal and physical custody come to mind. While these issues are a large part of many family law disputes, parties and their attorneys must also address various jurisdictional related matters. This means that the court must have proper jurisdiction to hear a case before it may render any orders affecting the parties. In California, the Uniform Child Custody Jurisdiction and Enforcement Act (the "UCCJEA") governs questions regarding a court's jurisdiction of a child custody matter. Many of these issues are complicated and require strict attention to detail. Failure to adhere to legal requirements could result in unexpected and unwelcome consequences. To avoid this, parties facing a child custody dispute are encouraged to contact a local San Diego family law attorney with experience handling such matters.

In a recent custody case, the mother sought to modify the custody arrangement concerning her 17-year-old daughter. Since 2006, the teenager had been living with her father, who had opposed the change of custody. Although the parties did not come to an agreement while attempting to mediate a custody plan, the mediator met with the parties and received voice messages from the child's therapist detailing her on-going treatment. After conducting the evaluation, the mediator recommended that the daughter change her residence (at the end of the school year) from the father's home in Oakland to the mother's in Santa Cruz.

Three days prior to the hearing on the matter, the court notified the parties of the mediator's recommendation. The father raised a few objections, namely that they only learned of the recommendation three days before the hearing, and that the mediator never actually spoke to the child's therapist, but relied on the information in the voice messages. The court postponed the hearing a few weeks but still adopted the mediator's unchanged recommendation and modified the custody order. The father appealed the decision. The court then asked the father to prepare a brief addressing the issue of whether the appeal is "moot."

The court of appeals pointed out that an appeal is moot when an event occurs which makes it impossible for the court to grant relief to the appellant. Under the UCCJEA, the courts in California have jurisdiction over child custody matters. The statute defines "child" as a person who has not yet reached 18 years of age. This means that when a child turns 18, the court relinquishes jurisdiction. The court concluded that when the parties' daughter -- who is the subject of the lower court's custody order - reached her 18th birthday, the issue on appeal became moot.

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February 6, 2014

California Family Code Governs Jurisdiction for Child Custody Proceedings

california-flag-497343-m.jpgLegal proceedings that involve the welfare of children can be some of the most trying and stressful matters for all affected parties. Child custody disputes, in particular, require special attention to the best interests of the children. There are numerous legal issues that will need to be addressed every step of the way, many of which would never occur to parents, such as determinations related to "jurisdiction" of the matter. Because the outcome of a child custody case can significantly impact a family's future in terms of parenting arrangements, it is critical that an experienced family law attorney handle the matter with care and competence. If you are facing a child custody dispute of any kind, you are encouraged to contact a local San Diego attorney as early as possible in the proceedings.

A recent case exemplifies the need to pay attention to every detail of a child custody matter. Here, a California court of appeals concluded that the juvenile court lacked subject matter jurisdiction over a custody dispute, where there was evidence that the child lived in San Diego for less than six months, and prior to that, lived in Mexico. According to the facts of the case, the child was born in San Diego in 2005, but lived in Mexico with his parents and attended school there. In January 2013, the mother brought the child to San Diego.

Two months later, the San Diego County Health and Human Services Agency (the "Agency") received a report indicating that the paternal grandfather had abused the child in Mexico. In response, the mother presented the Agency with letters from the Mexican government to show that there was a services assessment for the child. Further, a Mexican official confirmed that there was an active case against the grandfather. In April 2013, the Agency filed a dependency action for the child, arguing that both parents were currently in jail and unable to arrange for the child's care. He was placed in a foster home.

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January 30, 2014

Appeal of Child Custody and Support Order Must Include Complete Record of the Hearing

justice-srb-2-1040137-m (1).jpgMany litigants choose to represent themselves in court proceedings, and not hire an attorney. While most lawyers would advise against this, some people continue to conduct their cases "pro se" - without the assistance of counsel. It has been suggested in a recent article, however, that parties involved in family law cases, where the fate of a child is involved, would best be served by hiring an attorney. To take this point one step further, parents contesting child custody and support cases are encouraged not only to hire a family law attorney to protect their rights, but also to consult with an experienced practitioner with full knowledge of the local San Diego court procedures and requirements.

In a recent case, the California court of appeals denied the father's appeal of the lower court's order, pointing out that appellant failed to provide a compete record of the three-day hearing, and did not identify any legal error on the appellate record. The father was not represented by counsel and appeared in "propria persona" or for oneself (aka: pro se). Here, the couple married in 1991, had two daughters in 1998 and 2000. In 2004, the wife filed for divorce and the marriage was dissolved in December 2006. The court awarded the parents joint legal custody, and the mom received primary physical custody with an allocated time-sharing arrangement. The father was ordered to pay $2,000 per month in child support. There were other provisions in the support order identifying the sharing of certain additional expenses.

In 2009, the couple agreed to temporarily grant the mother sole legal custody, allowing the father to have limited supervised visits due to his pornography addiction (for which he agreed to seek treatment). In 2010, the couple entered into another stipulation acknowledging the father's progress in treatment and restoring the joint legal custody but affording the mother the authority to make all of the decisions concerning the children's health, education, activities and overall well being. The stated goal under the second stipulation was to eventually fully reinstate the original December 2006 order and judgment.

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January 23, 2014

Appellate Review of Child Custody Order Must Be Filed in a Timely Manner

calendar-840874-m.jpgCalifornia law governs many aspects of family court proceedings. Divorcing spouses are expected to follow the various rules of procedure applicable to their case, including matters relating to child custody and visitation. Failing to adhere to important time constraints can significantly impact the outcome of your case, and consequently, your family's future. In a recent California case, the father failed to timely appeal two separate child custody orders and was ultimately precluded from contesting certain dissatisfactory court rulings. For this reason and for many other critical needs, parties who are dealing with child custody and visitation matters are strongly encouraged to seek the advice of a local San Diego family law attorney.

In the case mentioned above, in February 2008, the court ordered the mother sole legal and physical custody of the couple's two daughters, ages one and three. The order also permitted the mother to move with the children from California to Michigan, where her parents lived. According to a court evaluator's report, the mother was more likely to promote a positive relationship between the non-custodial parent and the children, than the father would be if he were awarded primary custody. The father was entitled to monthly visitation and the mother would be required to bring the children to California each summer. The February 2008 order was a final judgment in the custody dispute. The father failed to appeal the order.

In November 2008, the father attempted to modify the custody and visitation order, but to no avail. The court entered an order on February 7, 2011, denying the modification request, finding that there had been no significant change in circumstances requiring such a change. The court noted that there was no evidence supporting the father's claims that the children were subjected to (or at risk of) sexual abuse by the grandfather. The court also refused to find "parental alienation" concerning father's allegations that the mother: 1) failed to accommodate his travel delays and 2) failed to encourage the girls to speak with him on the telephone.

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January 16, 2014

A Voluntary Declaration of Paternity Does Not Guarantee Presumed Father Status

paper-family-ii-832858-m.jpgIn some family court cases, there may be a question related to the identity of a child's father. Under California law, a determination of paternity or "parentage" is a significant factor in a child's life. Identifying a child's legal parents has the potential to seriously impact many financial and emotional issues. In fact, before a court will render orders concerning child support, custody and/or visitation, the parties involved must establish paternity. With such important items to be resolved, it is critical that parties reach out to an experienced family law attorney to help sort through their rights. Parents with questions concerning child custody, support or visitation are encouraged to contact a attorney with in-depth and comprehensive knowledge of the local laws and procedures in the San Diego court system.

In a recent California court of appeals case, In re Jovanni B., two men claimed to be the child's father. The first is John B., who was living with the mother when the child was born, and who also signed a voluntary declaration of paternity. The other is Brian H., who submitted to court ordered DNA testing that ultimately revealed that he was in fact the child's biological father. Upon receiving the DNA test results, the juvenile court not only dismissed John from the proceedings, but offered "reunification" services to Brian.

At the beginning of this case, the Los Angeles County Department of Children and Family Services (the "DCFS") asserted jurisdiction over Jovanni under the state Welfare and Institutions Code, based on evidence that the mother and John engaged in violent behavior in Jovanni's presence. During the DCFS proceedings, the mother identified John as the child's father and he signed the voluntary family maintenance plan as such. During sessions with a state social worker, the mother indicated that Brian, and not John, was Jovanni's biological father.

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November 28, 2013

Olympic Skier Bode Miller in a Cross-Country Custody Dispute with Ex-Girlfriend

silhouettes-7-1282782-m.jpgThe ongoing child custody battle that has divided Bode Miller and ex-girlfriend Sara McKenna, both emotionally and physically, is not yet over. Miller lives in San Diego, where he and McKenna first met and started dating. According to news reports, she now lives in New York and has recently been awarded temporary custody of their nine-month-old son by a family court referee in that state. Sadly, the baby has been back and forth in each parents' homes as the courts in two separate states attempt to work out an appropriate custody arrangement that will serve the best interests of the child. While the circumstances surrounding this widely publicized dispute are not necessarily the norm, child custody cases can evoke many intense emotions and positions by both parents. If you find yourself facing a child custody matter, it is critical that you contact an experienced San Diego family law attorney who can help you to navigate the sometimes-complicated, emotional process.

McKenna and Miller dated for a short while and although their relationship did not last, Miller did become pregnant. A former United States Marine, McKenna left California for New York to attend Columbia University with the help of the GI Bill. She was pregnant at the time, but claimed that Miller wanted nothing to do with the baby when he learned that she was pregnant. Miller initiated child custody proceedings in a San Diego family court. Once McKenna was in New York, Miller complained to a New York referee that she "absconded" with his baby by moving away. The court granted his request that the case be assigned back to California.

A California court then granted Miller custody of the baby boy. McKenna appealed. Just this month, a five-judge appeals panel in New York said that McKenna's basic rights had been violated and that jurisdiction belongs in New York because the baby was a resident of the state. This decision effectively sent the case back to the family court referee who awarded temporary custody of the baby to McKenna, until the next custody hearing that is scheduled for December 9 in New York.

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November 21, 2013

Parents Suing San Diego County for Alleged Loss of Custody over Medical Marijuana Use

pedestrian-zone-sign-1422766-m.jpgAccording to the Courthouse News Service in San Diego, a Gulf War veteran and his family are suing the county of San Diego and assorted employees for taking their two children away from them for a year. The city claims that they received a tip that the parents were running an illegal daycare center at the home and smoking marijuana around the children. Although authorities discovered that there was no illegal daycare center, they did find marijuana at the home. In his defense, the war veteran argues that he received a medical marijuana recommendation from a doctor to treat migraine headaches that resulted from exposure to chemical weapons during the war.

Although the only "hazard" the investigators found at the home was the marijuana, authorities returned three days later with instructions to take the children from the home and to bring them to an emergency shelter for allegedly abused and neglected children in San Diego County. Interestingly enough, according to the complaint, neither parent was ever criminally prosecuted for the possession and/or use of the marijuana. Under California law, there are procedures to follow when someone suspects a child is subject to abuse or neglect. When someone makes a report about the safety of a child, the police or a social worker must investigate. But taking children away from their parents, for any length of time, is a serious matter and can have lasting effects on the entire family. Parents who are facing a child custody matter of any sort are encouraged to contact a local, experienced family law attorney who can help to protect and preserve their rights.

In this case, the parents allege that the city took their children away without conducting a proper investigation into the facts of the case. The complaint alleges that the California Welfare Code obligates social workers to err on the side of keeping children at home with their parents so long as it is safe to do so. At some point during the proceedings, the juvenile court made the children "wards of the court" and placed them in a foster home.

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October 17, 2013

California Governor Signs Bill Allowing Children to Have More Than Two Legal Parents

family-990508-m.jpgUntil very recently, under California law, a child could have only two legal parents. For many families, that is just fine and serves the best interests of the child. But there are situations where limiting the number of parents can be detrimental to a child. According to an article in a San Diego newspaper, Governor Jerry Brown signed a bill that now allows children, under certain circumstances, to have more than two legal parents. The issue of parentage or paternity can arise in many different scenarios. Anyone who is confronting family law issues concerning custody and paternity of a child is encouraged to contact a local attorney with experience handling such serious matters.

Senator Mark Leno (D-San Francisco) introduced Senate Bill 274, a measure allowing a judge to legally recognize additional parents where not doing so would result in detriment to a child. Once the governor signed the bill, California became the fifth state in the country to allow a child to have more than two legal parents. According to an extensive article on the subject, the bill was passed in reaction to the 2011 case, In re M.C. In that case, a man and two women appeared to meet the criteria to be a legal parent of the same child. The Los Angeles Times reported that one woman was in the hospital and the other was in jail, but their child was sent to foster care because her biological father did not have parental rights.

The California appellate court held that it could not award legal parent status to all three due to prior rulings on the subject from the state's highest court. Because of this legal dilemma, the court invited the legislature to reconsider the limitation of only two legal parents. Proponents of the new law argue that judges will not be forced to rule in a way that may actually be a detriment to the child's interests. It is suggested that the law will be invoked mainly when a child does not have enough parents, not when he or she has too many. Opponents of the bill include advocates for traditional families, who anticipate that children will see greater indecision and conflict over matters involving their well-being.

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September 26, 2013

Change in Child Custody Order Triggers Unthinkable Violence Against Kids

courthouse-1330873-m.jpgAn article in the UT-San Diego describes a mother's violent and deadly reaction to a court-ordered change in the family's child custody arrangement. Under the Georgia court's order, the mother had several days to hand over custody of her two children, ages 13 and 10, to their father. The day before she was expected to do so, the children were found dead in a California hotel room. Police found evidence of poison in the room. There are many reasons a judge may find it necessary to change or modify a child custody arrangement. Parents facing such potential changes, or any child custody matter, are encouraged to reach out to an experienced San Diego family law attorney who can help ease you through the process.

The couple in this case divorced in 2007 after nearly 10 years of marriage. According to court documents, the mother had claimed that her former husband failed to make child support payments. In the fall of 2009, the court awarded the mother full custody of the children. Just a couple of weeks ago, a judge reduced the child support payments and ordered joint custody. At that point, the mother moved to Arizona, stating that she received a job transfer. Due to the sudden move, it seems, a judge found that the mother was alienating her children from her ex-husband. The court changed the order awarding the father full custody of the children.

In this tragic case, as the judge was rendering his decision regarding the custody change, the mother walked out of the courtroom in the middle of his order. Reports indicate that the mother said she would bring the children back to the father. Instead, the two kids were found in dead in a California hotel room. When police found her, she had been driving a car that crashed into an electrical box outside a shopping complex in Costa Mesa. Apparently, the mother has since asked the court for the death penalty.

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August 29, 2013

Child Custody Dispute Continues After U.S. Supreme Court Makes Its Ruling

watch-children-1415869-m.jpgLate this past spring, the U.S. Supreme Court ruled, in a 5-4 decision, that an American Indian child should not have been taken from her adoptive parents, a white couple with whom she had been living for the first 27 months of her life. The main issue in the case concerned an interpretation of a federal law intended to keep Indian families intact. The Supreme Court found that the law did not apply to this situation because the biological father relinquished his parental rights even before his daughter was born.

While this decision did not emanate from the courts in San Diego, the U.S. Supreme Court's decision would govern any case in the country under similar facts. This case presents a complicated child custody dispute, involving state and federal laws. Most child custody cases are chock full of serious issues and demands by the parents involved. It is vitally important to contact an experienced family law attorney to help navigate the local laws and court procedures.

Once the child was born, her biological mother agreed to allow a couple from South Carolina to adopt her daughter. Four months later, her biological father changed his mind and sought custody, arguing that he was not aware that the child's mother was planning to place her up for adoption. Citing the National Indian Welfare Act, the South Carolina Supreme Court ruled in favor of the biological father, awarding him custody of the child even though the couple was already in the process of adopting her. However, once the U.S. Supreme Court reversed the decision, the South Carolina Court ordered a family court judge to approve the child's adoption by the couple. The adoption was finalized on July 31.

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August 15, 2013

Music Mogul Usher's Ex-Wife Loses Emergency Motion for Custody of Their Children

happy-family-1389105-m.jpgAccording to widely publicized reports, Usher's ex-wife, Tameka Foster Raymond, filed an emergency custody motion with an Atlanta court seeking temporary custody of the couple's two children after their son almost drowned in a swimming pool. Just last year, Usher won primary custody of the kids after a bitter court dispute during which Foster Raymond made accusations that Usher was an absentee father. This past May, Foster Raymond filed for a custody modification, which had not been heard by the court prior to the swimming pool accident.

Parents who face child custody issues typically bring their case before a local family court. Anyone going through a custody dispute is encouraged to contact a local San Diego family law attorney who will work to achieve the best possible outcome for your family under the circumstances.

Despite the fact that Usher's five year-old son almost drowned while in the care of his aunt (at the direction of Usher), the court ruled that it did not amount to an emergency or crisis situation requiring that his two children be taken from him. The judge characterized the incident as "an awful accident," adding that no one person could have handled the situation better. The judge described the aunt as "a capable caregiver." In addition to this ruling, the court advised Usher to keep his ex-wife informed about his whereabouts and who is taking care of their children.

There are many factors to consider in any child custody case, especially one that involves a request for modification or an emergency custody motion. Under California procedure, once a judge issues a custody and visitation order, one or both parents may seek to alter the arrangement for various reasons. If both parents agree to the change, they may do so by changing the court order through an agreement. But if they cannot agree, one parent will be required to file papers with the court requesting a change (known as a "modification") of the current child custody order.

In order to modify a custody order, one must show that there has been a "change in circumstances" since the final order was rendered. Essentially, this would mean that there has been a significant change requiring a new custody and visitation arrangement in order to serve the best interests of the children. It is considered best for children to have consistent and stable child custody arrangements.

It is unclear whether Foster Raymond will have any success in her efforts to modify the custody order in Atlanta. We do know, however, that her emergency motion for temporary custody failed. Although this case did not take place in the San Diego court system, in most states, child custody orders will only be modified if the change would be in the best interests of the children. In any child custody proceeding, an experienced family law attorney who is familiar with the local rules and procedures will be able to provide the best possible approach to your family's case.

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