Stopping Stressful Custody Fights

Everyone agrees the current court process is damaging, especially to children. Judge Nancy Stock delivered the 2008 AFCC resolution to the Elkins Task Force, the resolution calling the status of children in family courts “a public health crisis.” They ignored it, even though in all the public hearings –including one special day-long session in San Francisco–people spoke only of issues regarding children . And at least 12 other organizations signed on to that resolution, but I have not heard of any action. And the band played on….
So I have written proposed legislation to change that process. Here are the first five pages:
Proposed Amendment to Family Code §§3000-3465 and Related Sections

Part 1. LEGISLATIVE FINDINGS; PURPOSE.—
It is the finding of the Legislature that:
(a) Nearly three-fourths of the children involved in litigation of family matters are age seven and younger, the ages of brain development most vulnerable to toxic stress, causing adverse and permanent damage, a cost to the State of its citizens being impaired in physical health, personal finances and responsible citizenship, and more likely to engage in substance abuse.
(b) Parental conflict related to divorce is a societal concern because children suffer potential short-term and long-term detrimental economic, emotional, and educational effects during this difficult period of family transition. This is particularly true when parents engage in lengthy legal conflict.
(c) Exposure to inter-parental conflict has a lasting, adverse impact on brain development. Prompt interventions will make the stress of divorce tolerable rather than toxic.
(d) Interventions to minimize toxic stress will reduce societal costs and lead to better public health and safety.
(e) The Legislature and people of the State of California find and declare that this amendment is necessary to serve compelling public interests, including those of making the most effective use of the limited financial resources now and prospectively available to support family law courts, maximizing use of the available resources, protecting the health and safety of all children, especially those younger ones whose brains are in development, enhancing the ability of parents to minimize trauma in the dissolution of marriage or partnership process, fostering harmony and tranquility in this state and its families. We recognize the crucial importance of childhood experience in shaping the health of the individual, and ultimately, society.THEREFORE, IT IS HEREBY ORDERED THAT: 1. Each county of this State shall establish a Center for Family Relationships which shall be separate and apart from the family law courts. A county may establish more than one such Center. The goals of the Centers shall be to effectuate parenting plans early in the dissolution process, and to prevent the escalation of conflict which is harmful to children. 2. The Centers shall be staffed with persons trained in parenting relationships and identifying high-conflict persons and domestic violence as defined Division 10 Part 1 of the Family Code. 3. Intake forms at the Centers shall include questionnaires designed to ascertain parenting histories, the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth; and patterns indicating high-conflict behaviors, including domestic violence. 4. All petitions for dissolution of marriage or partnership in which there are minor children, or actions to establish parental relationship shall be filed with the County Centers. At the time of such filing, a staff person shall interview the petitioner to determine whether the parents are amenable to formulating a parenting plan with the assistance of a staff mediator, or whether they should be assigned to a high-conflict specialist. The parents shall then be assigned to a mediator or specialist and the first session with their assigned staff person shall be set within 30 days of the filing of the petition. 5. When there has been domestic violence between the parties, the parties shall be assigned to a high-conflict specialist. 6. If parents write their own parenting plans, pursuant to minimum standards set forth in Section ___ below, and file those plans within 30 days of the filing of the petition, they may be excused from Center for Family Relationships mediation, except that the staff person assigned to assist in their parenting plans shall review it with the parents to assess whether it complies with minimum requirements for a parenting plan as set forth in subsection — of Section —; it is free from coercion; and it is in the best interests of the child or children. 7. Should a high-conflict specialist be unable to effectuate a parenting plan which is in the best interests of a child, the case shall be referred to a panel of three high-conflict specialists for the purpose of referring the parties to the Superior Court for a judge to order an appropriate parenting plan. The person identified as preventing the effectuation of a parenting plan shall pay the court costs and attorney fees incurred by the other party.
PART 2 ALLOCATION OF PARENTAL RESPONSIBILITIES Section ____ Definitions. For purposes of this Part: (a) “Abuse” has the meaning ascribed to that term in Division 10 Part 1 of this Code, Domestic Violence Prevention Act, Sections 6200 and following. (b) “Allocation judgment” means a judgment allocating parental responsibilities. (c) “Caretaking functions” means tasks that involve interaction with a child or that direct, arrange, and supervise the interaction with and care of a child provided by others, or for obtaining the resources allowing for the provision of these functions. The term includes, but is not limited to, the following: (1) satisfying a child’s nutritional needs; managing a child’s bedtime and wake-up routines; caring for a child when the child is sick or injured; being attentive to a child’s personal hygiene needs, including washing, grooming, and dressing; playing with a child and ensuring the child attends scheduled extracurricular activities; protecting a child’s physical safety; and providing transportation for a child; (2) directing a child’s various developmental needs, including the acquisition of motor and language skills, toilet training, self-confidence, and maturation; (3) providing discipline, giving instruction in manners, assigning and supervising chores, and performing other tasks that attend to a child’s needs for behavioral control and self-restraint; (4) ensuring the child attends school, including remedial and special services appropriate to the child’s needs and interests, communicating with teachers and counselors, and supervising homework; (5) helping a child develop and maintain appropriate interpersonal relationships with peers, siblings, and other family members; (6) ensuring the child attends medical appointments and is available for medical follow-up and meeting the medical needs of the child in the home; (7) providing moral and ethical guidance for a child; and (8) arranging alternative care for a child by a family member, babysitter, or other child care provider or facility, including investigating such alternatives, communicating with providers, and supervising such care. (d) “Parental responsibilities” means both parenting time and significant decision-making responsibilities with respect to a child. (e) “Parenting time” means the time during which a parent is responsible for exercising caretaking functions and non-significant decision-making responsibilities with respect to the child. (f) “Parenting plan” means a written agreement that allocates significant decision-making responsibilities, parenting time, or both. (g) “Relocation” means: (1) a change of residence from the child’s current primary residence to a new residence within this State that is more than 25 miles from the child’s current residence; (2) a change of residence from the child’s current primary residence to a residence outside the borders of this State that is more than 25 miles from the current primary residence. (h) “Religious upbringing” means the choice of religion or denomination of a religion, religious schooling, religious training, or participation in religious customs or practices. (i) “Restriction of parenting time” means any limitation or condition placed on parenting time, including supervision. (j) “Right of first refusal” has the meaning provided in subsection ____ of Section ____ of this Act. (k) “Significant decision-making” means deciding issues of long-term importance in the life of a child. (l) “Step-parent” means a person married to a child’s parent, including a person married to the child’s parent immediately prior to the parent’s death. (m) “Supervision” means the presence of a third party during a parent’s exercise of parenting time.
Section ____. Jurisdiction; commencement of proceeding. (a) A proceeding for allocation of parental responsibilities with respect to a child is commenced in the Family Relationships Center: (1) By filing a petition for dissolution of marriage or partnership in which there are minor children, or actions to establish parental relationship with the Family Relationships Centers.
(2) by filing a petition for allocation of parental responsibilities with respect to the child in the county in which the child resides; (3) by a person other than a parent, by filing a petition for allocation of parental responsibilities in the county in which the child is permanently resident or found, but only if he or she is not in the physical custody of one of his or her parents; (4) by a step-parent, by filing a petition, if all of the following circumstances are met: (A) the parent having the majority of parenting time is deceased or is disabled and cannot perform the duties of a parent to the child; (B) the step-parent provided for the care, control, and welfare of the child prior to the initiation of proceedings for allocation of parental responsibilities; (C) the child wishes to live with the step-parent; and (D) it is alleged to be in the best interests and welfare of the child to live with the step-parent as provided in Section ____ of this Act; or (5) when one of the parents is deceased, by a grandparent who is a parent or step-parent of a deceased parent, by filing a petition, if one or more of the following existed at the time of the parent’s death: (A) the surviving parent had been absent from the marital abode for more than one month without the spouse knowing his or her whereabouts; (B) the surviving parent was in State or federal custody; or (C) the surviving parent had: (i) received supervision for or been convicted of any violation of Section of the Penal Code, directed towards the deceased parent or the child; or (ii) received supervision or been convicted of violating an order of protection entered under Section 6200 ff. of the Domestic Violence Prevention Act for the protection of the deceased parent or the child. (c) When a proceeding for allocation of parental responsibilities is commenced, the party commencing the action must forthwith serve a written notice of the time and date of the first meeting with the Family Relationships Centers and a copy of the petition on the child’s parent, guardian, person currently allocated parental responsibilities and any person with a pending request for allocation of parental responsibilities with respect to the child.
Section _____. Allocation of parental responsibilities: decision-making. (a) Generally. The aim of all parenting plans shall be to allocate decision-making responsibilities according to the child’s best interests. Nothing in this Act requires that each parent have allocated decision-making responsibilities. (b) Allocation of significant decision-making responsibilities. If the parents agree in writing on an allocation of significant decision-making responsibilities, as defined below, that agreement if approved by the Center shall be deemed and filed in the dissolution or parental relationship action as an order of the court. If the parents are referred to court as intractable high-conflict, the court shall consider as follows those significant issues including, without limitation, the following: (1) Education, including the choice of schools and tutors. (2) Health, including all decisions relating to the medical, dental, and psychological needs of the child and to the treatments arising or resulting from those needs. (3) Religion, subject to the following provisions: (A) A court shall allocate decision-making responsibility for the child’s religious upbringing in accordance with any express or implied agreement between the parents. (B) A court shall consider evidence of the parents’ past conduct as to the child’s religious upbringing in allocating decision-making responsibilities consistent with demonstrated past conduct in the absence of an express or implied agreement between the parents. (C) A court shall not allocate any aspect of the child’s religious upbringing if it determines that the parents do not or did not have an express or implied agreement for such religious upbringing or that there is insufficient evidence to demonstrate a course of conduct regarding the child’s religious upbringing that could serve as a basis for any such order. (4) Extracurricular activities. (c) Determination of child’s best interests. In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, a court shall consider all relevant factors, including, without limitation, the following: (1) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making; (2) the child’s adjustment to his or her home, school, and community; (3) the mental and physical health of all individuals involved; (4) the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making; (5) the level of each parent’s participation in past significant decision-making with respect to the child; (6) any prior agreement or course of conduct between the parents relating to decision- making with respect to the child; (7) the wishes of the parents; (8) the child’s needs; (9) the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement; (10) whether a restriction on decision-making is appropriate under Section ____; (11) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child; (12) the physical violence or threat of physical violence by the child’s parent directed against the child; (13) the occurrence of abuse against the child or other member of the child’s household; (14) whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated; and (15) any other factor that a court expressly finds to be relevant. (d) A parent shall have sole responsibility for making routine decisions with respect to the child and for emergency decisions affecting the child’s health and safety during that parent’s parenting time.
Section _____ . Allocation of parental responsibilities: parenting time. (a) Best interests. A court, if called upon to make the decision, shall allocate parenting time according to the child’s best interests. (b) Allocation of parenting time. The parents’ mutually-agreed and approved written parenting plan shall be the court order. If a court must allocate parenting time, it may place restrictions on parenting time as defined in Section ____ above, and described in Section _____, if it finds by a preponderance of the evidence that a parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health. In determining the child’s best interests for purposes of allocating parenting time, a court shall consider all relevant factors, including, without limitation, the following: (1) the wishes of each parent seeking parenting time; (2) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time; (3) the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth; (4) any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child; (5) the interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child’s best interests; (6) the child’s adjustment to his or her home, school, and community; (7) the mental and physical health of all individuals involved; (8) the child’s needs; (9) the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement; (10) whether a restriction on parenting time is appropriate; (11) the physical violence or threat of physical violence by the child’s parent directed against the child or other member of the child’s household; (12) the willingness and ability of each parent to place the needs of the child ahead of his or her own needs; (13) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child; (14) the occurrence of abuse against the child or other member of the child’s household; (15) whether one of the parents is a convicted sex offender or lives with a convicted sex offender and, if so, the exact nature of the offense and what if any treatment the offender has successfully participated in; the parties are entitled to a hearing on the issues raised in this paragraph ; (16) the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed; and (17) any other factor that a court expressly finds to be relevant. (c) In allocating parenting time, a court shall not consider conduct of a parent that does not affect that parent’s relationship to the child. (d) Upon motion, a court may allow a parent who is deployed or who has orders to be deployed as a member of the United States Armed Forces to designate a person known to the child to exercise reasonable substitute visitation on behalf of the deployed parent, if the court determines that substitute visitation is in the best interests of the child. In determining whether substitute visitation is in the best interests of the child, the court shall consider all of the relevant factors listed in subsection (b) of this Section and apply those factors to the person designated as a substitute for the deployed parent for visitation purposes. Visitation orders entered under this subsection are subject to subsections (e) and (f) of Section ____ and subsections (c) and (d) of Section ____. (e) If the street address of a parent is not identified pursuant to Section ____ of this Act, the court shall require the parties to identify reasonable alternative arrangements for parenting time by the other parent including, but not limited to, parenting time of the minor child at the residence of another person or at a local public or private facility.
Section _____. Parenting time by parents not allocated significant decision-making responsibilities. (a) A parent who has established parentage under the laws of this State and who is not granted significant decision-making responsibilities for a child is entitled to reasonable parenting time with the child, subject to subsections (d) and (e) of Section 603.10 of this Act, unless a court finds, after a hearing, that the parenting time would seriously endanger the child’s mental, moral, or physical health or significantly impair the child’s emotional development. The order setting forth parenting time shall be in the child’s best interests pursuant to the factors set forth in subsection (b) of Section ____ of this Act. (b) A court may modify an order granting or denying parenting time pursuant to Section _____ of this Act. The court may restrict parenting time, and modify an order restricting parenting time, pursuant to Section _____ of this Act. (c) If the street address of the parent allocated parental responsibilities is not identified, pursuant to Section 6200 ff. of this Act, the court shall require the parties to identify reasonable alternative arrangements for parenting time by a parent not allocated parental responsibilities, including but not limited to parenting time of the minor child at the residence of another person or at a local public or private facility.
Section _____. Visitation by certain non-parents. (a) As used in this Section: (1) “electronic communication” means time that a grandparent, great-grandparent, sibling, or step-parent spends with a child during which the child is not in the person’s actual physical custody, but which is facilitated by the use of communication tools such as the telephone, electronic mail, instant messaging, video conferencing or other wired or wireless technologies via the Internet, or another medium of communication; (2) “sibling” means a brother or sister either of the whole blood or the half blood, stepbrother, or stepsister of the minor child; (3) “step-parent” means a person married to a child’s parent, including a person married to the child’s parent immediately prior to the parent’s death; and (4) “visitation” means in-person time spent between a child and the child’s grandparent, great-grandparent, sibling, step-parent, or any person designated under subsection (d) of Section _____. In appropriate circumstances, visitation may include electronic communication under conditions and at times determined by the court. (b) General provisions. (1) An appropriate person, as identified in subsection (c) of this Section, may bring an action in circuit court by petition, or by filing a petition in a pending dissolution proceeding or any other proceeding that involves parental responsibilities or visitation issues regarding the child, requesting visitation with the child pursuant to this Section.

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