Hi everybody! It's Andy and welcome again to my office in Los Altos, California. I'm
an attorney licensed to practice law in California as well as New York. In this
video, I'm going to go over a section of the Family Code - section 3020 - that
basically goes over custody and visitation of children. The reason why
I'm going to go over it is because I'm going to describe a very common -
unfortunately it's very common - situation in which, in a domestic violence matter
for example, one parent of the child will use the children as leverage and the
other parent, unfortunately I think, falls for the tactic more often than they
really should. Yeah so this video, hopefully, is going to kind of address
that situation. So I'll kind of, you know, now that I've built it up, I guess, I will
describe the situation for you. So let's say, I'm going to pick on husband's here or
dad's here for a little bit, so let's say that, you know, mom and dad are married
and let's say that dad is very controlling, for example, and mom starts
to realize and says 'Hey, you know, I want a divorce. I'm done. This is something
where I just, I can't stand you treating me this way anymore,' for instance. So, you
know, dad then turns around and says 'Well, you know, if you leave me, I'm gonna make sure
that you never see the kids again. I'm gonna take the kids from you. They're
never gonna know you. The kids are going to be mine if you dare try to
leave me, if you dare try to file for divorce, etc.' So in a situation like that,
I'm hoping a lot of you can realize that that is not about love, that's not about,
uh, you know, compassion, empathy, etc. It is purely a power play. Dad in this
situation - moms can do it too - it is, dad is basically trying to use the children
to control mom, to prevent mom from leaving because dad is, you know, jealous,
dad is controlling, whatever. So, all too often, unfortunately, um, moms in that
scenario that I described fall for it because they say 'Hey, you know, I, you know,
you hit me, you abuse me, but I love my kids and I don't want to lose my kids.
Fine I'll stay with you even though you abuse me in all these different ways.' So
that is, I mean it's understandable, I think, like, you know,
no parent wants to lose their kids, but it isn't, it's completely unnecessary and
the reason why it's unnecessary is because of California Family Code section three
zero two zero. 3020 is basically what everyone calls it. So, um, 3020
I'm going to go ahead and link it down below, but there is a particular
section in 3020 - I believe it's 3020(b) - that I want to draw your attention to and the quote, the
specific quote, is "frequent and continuing contact with both parents."
I'll kind of describe what that means. So in a divorce case or in any, basically any
family law case where minor children are involved, the court's job is to look out
for the kids. Mom and dad, you know, the court has some obligations to them, but
if there's a minor child involved - child under age 18 - the court has specific
obligations to them to make sure that they grow up in a environment where they
have food, shelter, they're free from abuse, etc. It, unfortunately, is a
debatable kind of, debatable topic I guess, whether or not the courts succeed
in that, but by law they are supposed to, they do their best, but, you know,
nothing is perfect, of course. So one kind of, kind of guideline, I
suppose, or one sort of mandate that they have, that the courts have, is that
the courts basically say 'Okay it is going to be rebuttably presumed that a
child is going to be better off emotionally, physically, mentally, etc, if
they have frequent and continuing contact with both parents.'
That's what 3020 says. It is not absolute that, you know, they have frequent, er,
sorry. It is not absolute that the child must have frequent and continuous
contact with both parents. Conversely, it is not a guarantee that every parent
must have frequent and continuous contact with every child. There are certain
situations in which that does not happen, but, I guess, a lot of times people in the
scenario that I described way at the beginning where dad is trying to control
mom or mom is trying to control dad, I kind of get the impression that a lot of
those parents who fall for that tactic don't realize that by law California
gives them an entitlement to their children generally. So the entitlement is
going to be frequent and continuous contact with the children
and it's because the courts have the, have the duty to guard the health, safety,
welfare of any minor children that are involved in a family law case. So
hopefully that made sense. Basically Family Code section 3020, it's something
where I think a lot of parents if they knew about it, they would not nearly be
as afraid or as vulnerable, as susceptible I guess, to the threat that
'Oh well, you know, if you don't do what I say I'm gonna take the kids from you.'
Taking the kids, it's not impossible. It can be done. It generally is not going to
be nearly as easy as the parent who is making that threat will kind of think, I
guess. Yeah. Almost always it is going to be a power play from one parent to the
other where if you don't do what I say I'm gonna take the kids away from you.
Section 3020 the Family Code makes that actually quite difficult. I will say a
couple things about 3020. Like I said a moment ago, it is not absolute.
There are definitely situations in which, for example, if one parent is a criminal,
if one parent commits domestic violence, if one parent is in a gang or if one
parent is on drugs or something, generally if the parent can't take care
of themselves or they're going to be a danger to the children, that is something
where the courts are not going to force the children to be with a dangerous
parent. If this is a domestic violence situation that, for example, you find
yourself in, there's this family, there - hang on - there's a section of the Family
Code, rather, that goes over child custody and visitation in domestic violence
situations. That's Family Code section 3044(a). I'm going to write that here actually.
So - and link it down below - 3044(a). I don't have a video that goes over it
right now, but 3044(a) basically says that if, you know, if one parent has
committed domestic violence, generally the courts are going to assume that it
is not a good idea to put the children with that parent. Yeah.
And mediators, you know, Family Court Services mediators, for example, will
basically kind of default to that also. If you are the parent who is on the flip side, if
you're the parent who has, for instance, committed domestic violence and 3044(a)
is being used against you, you should probably take a look at 3044(b). That
kind of goes over ways in which 3044(a) can be rebutted. Not a guarantee.
It's up to the judge but, you know, 3044(a) and (b) kind of address custody and
visitation in domestic violence situations. So, um, yeah. So hopefully all
of that made sense. The takeaway here I think is because, you know, 30, 3020
already says frequent and continuous contact with both parents is going to be
presumed to be better off for the children, taking the kids away, as I said
I think twice now, taking kids away from one parent is generally going to be pretty
tough. One parent generally can't just say 'Oh well, you know, I decide that I'm
better, the other person is worse, I'm gonna take the kids away' like it's not
that's simple. At all. So there really should be no reason why one
parent should be scared by a threat like that. If there's domestic violence, yeah
okay, well that's going to be slightly different, of course. Um, yeah.
So, um, on the topic of 3020, I'm going to also go over the 50/50 kind of rumor, I
guess or presumption - presumption is the wrong word - like basically a lot of times
in family court, parents will sort of think 'Oh well, you know, you know, the kid,
we should have equal custody. You know, we should have the kids 50/50 - half the week
with me, half the week with you. 3020 does not require 50/50. In
other words, frequent and continuous contact - which is what 3020
requires - that can mean 50/50, but that does not have to mean 50/50. So to
basically say that, like 3020 requires 50/50 between the parents is not correct. Some
judges will do that, though, you know just it really depends. Some judges will say
'Oh well, frequent and continuous means 50/50 that's what I'm gonna order.' Other
judges - I think the majority of judges - will probably not do that. They'll say
'Okay well, frequent and continuous basically means, okay the kids have to
see dad every week and they have to see dad, you know, often I guess. They can't be
just say, like once a month, let's say. But frequent and continuous could be 25%-75%,
that's possible. It really depends. So 50/50 is not guaranteed.
I will also kind of describe to you that 50/50 a lot of times will not happen if
there's some practical reason why they can't, er, why it can't happen. So, um,
the most common one that I run into is geography.
So let's say, for instance, that, you know, there's a case in California and mom
lives in the San Francisco Bay Area with the kids and dad used to live up here,
but he got a job and he moved to Southern California, Los Angeles let's
say. That's probably not going to be something where the kids are going to be
flying back and forth from San Francisco, er, from San Jose or San Francisco or
someplace down to, say, Orange County or Los Angeles, you know, Airport or
something. They're probably not going to be flying that, you know, every week, let's say.
Maybe once a month, twice a month. All the more, you know, that kind of logic
also applies if, for example, one parent lives with the children on the West
Coast and the other parent lives on the East Coast or they live in the Midwest,
let's say. So instead of a one hour, say Southwest flight from San Francisco down
to Los Angeles, we're talking about a three-hour flight from, say, San Francisco
to Dallas or San Francisco to Chicago or something. Yeah so geography is a
limitation here also, but hopefully it's, I mean, I guess, there are ways to get
around the geography limitation. Skype, you know, is one, one big way.
FaceTime is a big way. A lot of electronic sort of ways are things that
judges will actually use quite often, if you know to kind of suggest them. Yeah so
hopefully, I guess, all of that made sense. The kind of, my overriding reason
here to bring up, er, to make this video is to basically kind of, basically teach
parents that the threat that the other parent might make to take your kids away
generally is not going to be something you should worry about, I think. I don't
mean to kind of, you know, give you false hope here, but I think you should know
that 3020 does actually make that more difficult than the other parent would
like to make you think. Yeah. So 3020 definitely exists. It applies to both parents so frequent and
continuous contact is something that the courts will want to shoot for. Geography,
of course, will be a limitation. Work schedule of the parents sometimes can
be a limitation also, but if you do have a like a, like a bonafide reason for not
doing frequent and continuous contact, let's say domestic violence, you know
that could be one reason why frequent and continuous is
not done. 3044, Family Code section 3044, is a reason why that would be. And lastly
50/50 is not something that is guaranteed. Courts will generally like to
shoot for close to 50/50, though, but it is not a guarantee. There is no kind of
mandate or requirement that 50/50 be done. In my experience, however, judges
will, will try to do that when they can because it is something, I think, they,
they will hopefully realize that it does actually make everybody, like it makes
the situation, situation more peaceful. Less conflict will arise in the
future. Less court hearings, etc. Yeah. So anyway,
hopefully that helped. Family Code section 3020 frequent and continuous contact
with both parents. That's something that's pretty powerful actually.
Courts, there are a handful of statutes under the Family Code, I think, that
family courts generally will sort of view as sacrosanct, like they're not
going, like they're gonna try to, like they will follow them basically. It's so
important that they do. 3020 definitely, I think, is one of them
and it is something where just not a lot of people know about it, I think. And a
lot of parents - moms especially, I think - will get threatened and bullied for no
good reason. Anyway, hopefully that helped. Go ahead and comment, share, like,
subscribe, all that stuff and I will talk to you guys next time.
Thanks.