Modification of Visitation Orders

Changes to Parenting Plan

Child Custody

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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

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“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)

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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

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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?

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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