modification of visitation orders
DESCRIPTION
A review of a recent California case where a registered sex offender moved the court for unmonitored visitation, we learn the appropriate test to be used by the court in granting or denying the modification requestTRANSCRIPT
Changes to Parenting Plan
Child Custody
Marriage of Lucio
Marriage of Lucio
Disso: 8/23/04 Two children
Stipulated Judgment: Joint legal custody M granted sole physical custody F given monitored visits for six hours every
Sunday
Marriage of Lucio
“Father shall have monitored visits with the children, with the goal of having unmonitored visits once the father’s probation is terminated.”
F’s prior convictions: 2002: F pled guilty to one count of lewd
conduct (3 years informal probation) 2003: F pled guilty to indecent exposure (30
days jail and 3 years formal probation)
Marriage of Lucio
Probation completion: March, 2006: F completes three years of
therapy and his probation ends. April 2006: F files OSC for modification of the
order
F’s request: Unmonitored visits on alternate weekends Best interest of the children to have visits
Marriage of Lucio
T/Ct: OSC dismissed, based on F’s failure to show change of circumstances
M awarded $5,000 attorney’s fees
F appeals. Your Ruling?
Marriage of Lucio
Court of Appeal: Reversed and remanded. A showing that there was a change of
circumstances was not required F had not requested a change in custody F only requested a change in visitation “Best interest test” should have been applied
Family Code, Section 3011
In making a determination of the best interest of the child in a proceeding . . . , the court shall, among any other factors it finds relevant, consider all of the following:
(a) The health, safety, and welfare of the child.
Family Code, Section 3011(continued)
(b) Any history of abuse by one parent or any other person seeking custody against any of the following:
(1) Any child to whom he or she is related . . . , or with whom he or she has had a caretaking relationship . . . .
(2) The other parent. (3) A parent, current spouse, or cohabitant, of the
parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
Family Code, Section 3011(continued)
(c) The nature and amount of contact with both parents . . . .
(d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent.
Marriage of Lucio
(626) 683-8113