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  1. #1
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    Default Suspending Visitation After a Non-Custodial Parent's Arrest

    My question involves a child custody case from the State of: California

    I'm not sure if this post belongs here or Criminal Law section but feel free to move as you see fit.

    I am the primary custodial parent of my 12-year-old daughter. Father has standard CA visitations of every Wednesdays until 8pm and every other weekend.

    I discovered this morning that father was arrested. Per online public county inmate information, he was charged with HS 11358, HS 11359, and PC 1275 HOLD. While the first two are self explanatory, the third not so much.

    My daughter's safety and well-being is of paramount importance to me. I do not have a lot of information as far as events that led up to his arrest this morning. I want to tread carefully as I do not want to expose her to illegal activities nor do I want to hurt her in the process. Without conducting much research, I am considering filing a motion to suspend his visitations.

    Please share your thoughts and thank you.

  2. #2
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    Sep 2005
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    Default Re: Non Custodial Parent Was Arrested

    He was busted for cultivation and possession of marijuana for sales, and the 1275 hold indicates that the court wants to verify that funds used to post bail do not come from illicit sources (such as drug sales).

    I'd say you have good cause to withhold visitation and seek an emergency order.

    278.7. (a) Section 278.5 does not apply to a person with a right to custody of a child who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds, or conceals that child.
    (b) Section 278.5 does not apply to a person with a right to custody of a child who has been a victim of domestic violence who, with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm, takes, entices away, keeps, withholds, or conceals that child. "Emotional harm" includes having a parent who has committed domestic violence against the parent who is taking, enticing away, keeping, withholding, or concealing the child.
    (c) The person who takes, entices away, keeps, withholds, or conceals a child shall do all of the following:
    (1) Within a reasonable time from the taking, enticing away, keeping, withholding, or concealing, make a report to the office of the district attorney of the county where the child resided before the action. The report shall include the name of the person, the current address and telephone number of the child and the person, and the reasons the child was taken, enticed away, kept, withheld, or concealed.
    (2) Within a reasonable time from the taking, enticing away, keeping, withholding, or concealing, commence a custody proceeding in a court of competent jurisdiction consistent with the federal Parental Kidnapping Prevention Act (Section 1738A, Title 28, United States Code) or the Uniform Child Custody Jurisdiction Act (Part 3 (commencing with Section 3400) of Division 8 of the Family Code). (3) Inform the district attorney's office of any change of address or telephone number of the person and the child.
    (d) For the purposes of this article, a reasonable time within which to make a report to the district attorney's office is at least 10 days and a reasonable time to commence a custody proceeding is at least 30 days. This section shall not preclude a person from making a report to the district attorney's office or commencing a custody proceeding earlier than those specified times.
    (e) The address and telephone number of the person and the child provided pursuant to this section shall remain confidential unless released pursuant to state law or by a court order that contains appropriate safeguards to ensure the safety of the person and the child.

  3. #3
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    Mar 2012
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    Default Re: Non Custodial Parent Was Arrested

    Thank you CDWJAVA! He has no idea how much his action will hurt his daughter but as her mother, I will take all necessary steps to protect her best interest. I can now get some sleep tonight and consult with my attorney first thing in the morning.

  4. #4
    Join Date
    Feb 2011
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    576

    Default Re: Non Custodial Parent Was Arrested

    DO speak with an attorney "who is representing you" BEFORE you take any action on your own initiative to withhold visitation. It is far from a given the court will restrict much less deny the fathers visitation rights over marijuana plants, and will depend upon facts of which as of now you have very little of.

  5. #5
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    Default Re: Non Custodial Parent Was Arrested

    Quote Quoting tex11
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    DO speak with an attorney "who is representing you" BEFORE you take any action on your own initiative to withhold visitation. It is far from a given the court will restrict much less deny the fathers visitation rights over marijuana plants, and will depend upon facts of which as of now you have very little of.
    Very often, that opportunity is not available and that is why this code section is built into the law - to provide some cover for parents with a legitimate concern for the safety of their children to withhold visitation provided they take some basic steps (notifying the DA, filing for an emergency order) as soon as reasonably possible. Yes, consulting an attorney is a good idea, but most parents do not have attorneys on retainer, especially if any custody and visitation arrangements have long been settled, or, they dealt with it themselves int he first place because attorneys were too pricey.

    Dad was busted for cultivation and sales - that is not merely possession of a few joints - it is relatively certain that at least a temporary order will be granted and that she will be permitted to suspend visitation at least until a hearing can be granted giving the father an opportunity to respond. I don't know about you, but I would fight tooth and nail to keep my child out of the clutches of someone engaged in drug trafficking! Under this circumstance, I would withhold visitation and take the steps required under the law as I would not want my child put at risk ... but, maybe that's me.

    I suspect that if he is ultimately charged, dad may have to submit to at least temporary supervised visitation and maybe even regular drug testing as a condition of renewed visitation. But, the devil will be in the details of the arrest.

  6. #6
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    Default Re: Non Custodial Parent Was Arrested

    Nevertheless, resulting in self help could backfire on her and minimally, she needs to go talk to the family law facilitator and get an order allowing her to do what she wants to do as oppose to doing it herself. Ask for permission, not for forgiveness.

  7. #7
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    Default Re: Non Custodial Parent Was Arrested

    Quote Quoting CourtClerk
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    Nevertheless, resulting in self help could backfire on her and minimally, she needs to go talk to the family law facilitator and get an order allowing her to do what she wants to do as oppose to doing it herself. Ask for permission, not for forgiveness.
    This section was written for that. It allows a parent to withhold visitation with cause, report this to the DA and then seek an emergency order with the court. It requires the petitioner comply with the law, abut, it also permits the parent a way to act immediately without putting their child at risk if they cannot get before the court. While the section can be utilized with the assistance of an attorney, it is most often NOT done so as that is often the state of the parties involved (unrepresented and unable to afford said representation).

    Ever try to seek an emergency order for a hearing? They could be calendared days or even weeks down the road. In the meantime, a child could be placed at risk numerous times. THAT is why this section exists. It also advises the parent/guardian taking the action that they MIGHT still be found liable for violating the custody order should a court not agree with their take on the matter, and there is no guarantee that a DA will not file charges if they feel the reasoning provided is bogus.

    I have spent years dealing with juvenile crimes and this is a section that has, quite literally, saved children's lives. Advising a parent that they have to continue to put their child at risk would be unprofessional and dangerous, so we provide them with the information in this section to give them an alternative to protect their child when they have no immediate alternative. And, most the people I deal with HAVE no immediate alternative ... no "in" with the court to get an IMMEDIATE hearing, and usually no attorney to consult on the issue.

  8. #8
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    Default Re: Non Custodial Parent Was Arrested

    Quote Quoting cdwjava
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    Ever try to seek an emergency order for a hearing? They could be calendared days or even weeks down the road.
    Did you forget that family law was my thing for 10 good years of my life. Yes, I've attempted and seen, on a daily basis people seek and be given emergency orders on a daily basis. That's what ex parte orders are for and it's not weeks. You get an ex parte hearing in 24 hours. The hearing based on the temporary orders is calendared weeks later.

  9. #9
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    Default Re: Non Custodial Parent Was Arrested

    Quote Quoting CourtClerk
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    Did you forget that family law was my thing for 10 good years of my life. Yes, I've attempted and seen, on a daily basis people seek and be given emergency orders on a daily basis. That's what ex parte orders are for and it's not weeks. You get an ex parte hearing in 24 hours. The hearing based on the temporary orders is calendared weeks later.
    With visitation exchanges taking place on Fridays and Sundays much of the time, there is no time to seek an order and an exchange can be imminent. This is why the section exists - to allow the parent to take whatever actions they need to in order to protect the child without having to necessarily fear the weight of the police coming down on them. And, it would be nice if they could always get an ex parte hearing within 24 hours ... that is not always the case here, and, I suspect, not always the case in other counties, either. I have known parents who have sought an order on a Monday and been unable to get before a judge until Thursday.

    Of course if there is time, seek the emergency order. But! If time is short, PC 278.7 exists to allow a guardian to take those reasonable steps to protect their child(ren) from a potentially dangerous situation.

  10. #10
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    Default Re: Non Custodial Parent Was Arrested

    Quote Quoting cdwjava
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    I have known parents who have sought an order on a Monday and been unable to get before a judge until Thursday.
    Because of faulty service or because an entire county's court system has decided to violate that whole thing in the CRC and CCP?

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