[ParentInCA]

I have two questions regarding child custody in CA:

-------------------------

Question 1. 2004 CA LaMASUGA case vs. 2003 CA legislation SB 156

I am confused regarding the current status of the LaMasuga "move-away" case
Which is contrary to the 2003 SB 156 "move-away" legislation.
Was the 2004 LaMasuga court ruling made ineffective (preemptively?) by SB 156 in 2003?

I thought that court cases trump legislation.

SB 156 states:

----------------------------

SECTION 1. Section 7501 of the Family Code is amended to read:

7501. (a) A parent entitled to the custody of a child has a right to

Change the residence of the child, subject to the power of

The court to restrain a removal that would prejudice the rights

Or welfare of the child.

(b) It is the intent of the Legislature to affirm the decision in

In re Marriage of Burgess (1996) 13 Cal.4th 25, and to

Declare that ruling to be the public policy and law of this state.

Ref: http://www.thurmanarnold.com/Practice-Areas/Family-Law-Statutes-Page/Family-Code-section-7501-Move-Away-Statute-.aspx
------------------------------

So, is the 2004 LaMasuga case still controlling, despite the 2003 SB 156 legislation?

Or, if SB 156 is controlling:

Then it seems that the most relevant term is "the parent entitled to the custody of the child." That is, I presume she would have to win *sole* custody (not joint custody) for this legislation to be relevant to a move-away situation?

Question 2. IMPACT OF THE USE OF CONTROLLED SUBSTANCES ON CUSTODY CASES

From research I have done on the web, it seems that a parent's continued use
Of controlled substances can be taken into consideration in custody cases.
Specifically:

-----------------------

California Family Code Section 3011:

In making a determination of the best interest of the child

In a proceeding described in Section 3021, the court shall, among any

Other factors it finds relevant, consider all of the following:

(d) The habitual or continual illegal use of controlled substances

Or habitual or continual abuse of alcohol by either parent.

As used in this subdivision, "controlled substances" has

The same meaning as defined in the California Uniform Controlled

Substances Act, Division 10 (commencing with Section 11000) of

The Health and Safety Code.

-----------------------------------------------

In addition, I noted this related article:

'Pot Dad' Losing Custody of Children Because of Medical Marijuana:

http://www.breitbart.tv/pot-dad-losing-custody-of-children-because-of-medical-marijuana/

Is the above generally still in effect, or, to your knowledge, have there been other court cases or legislation that would modify or limit the above?

[this8384]

I have two questions regarding child custody in CA:

-------------------------

Question 1. 2004 CA LaMASUGA case vs. 2003 CA legislation SB 156

I am confused regarding the current status of the LaMasuga "move-away" case
which is contrary to the 2003 SB 156 "move-away" legislation.
Was the 2004 LaMasuga court ruling made ineffective (preemptively?) by SB 156 in 2003?

I thought that court cases trump legislation.

SB 156 states:

----------------------------

SECTION 1. Section 7501 of the Family Code is amended to read:

7501. (a) A parent entitled to the custody of a child has a right to

change the residence of the child, subject to the power of

the court to restrain a removal that would prejudice the rights

or welfare of the child.

(b) It is the intent of the Legislature to affirm the decision in

In re Marriage of Burgess (1996) 13 Cal.4th 25, and to

declare that ruling to be the public policy and law of this state.

Ref: California Family Code Section 7501 | Divorce Codes California
------------------------------

So, is the 2004 LaMasuga case still controlling, despite the 2003 SB 156 legislation?

Or, if SB 156 is controlling:

Then it seems that the most relevant term is "the parent entitled to the custody of the child." That is, I presume she would have to win *sole* custody (not joint custody) for this legislation to be relevant to a move-away situation?

Question 2. IMPACT OF THE USE OF CONTROLLED SUBSTANCES ON CUSTODY CASES

From research I have done on the web, it seems that a parent's continued use
of controlled substances can be taken into consideration in custody cases.
Specifically:

-----------------------

California Family Code Section 3011:

In making a determination of the best interest of the child

in a proceeding described in Section 3021, the court shall, among any

other factors it finds relevant, consider all of the following:

(d) The habitual or continual illegal use of controlled substances

or habitual or continual abuse of alcohol by either parent.

As used in this subdivision, "controlled substances" has

the same meaning as defined in the California Uniform Controlled

Substances Act, Division 10 (commencing with Section 11000) of

the Health and Safety Code.

-----------------------------------------------

In addition, I noted this related article:

'Pot Dad' Losing Custody of Children Because of Medical Marijuana:

Breitbart.tv 'Pot Dad' Losing Custody of Children Because of Medical Marijuana

Is the above generally still in effect, or, to your knowledge, have there been other court cases or legislation that would modify or limit the above?

What everything ultimately boils down to is what the judge feels is in the child(ren)'s best interests.

No, a parent does not need to obtain sole legal custody in order to move the child(ren) away from the non-custodial parent. Both parents can still maintain joint legal custody and if the court feels it is in the child(ren)'s best interests, they will allow the custodial parent to move. There is no set rule for moving.

Yes, if a parent is using controlled substances in the presence of the child(ren) that absolutely can be taken into consideration. If the parent is under the influence of drugs - medically prescribed or not - the child could be put into danger. Again, there is no set rule for this. It depends on what the judge feels is best for the child(ren).

[Fr_Chuck]

We are talking family court, not criminal court, while prior case law has some bearings, in family court, the judge uses their opinion of what is best for the child, And the rulings from one judge to another on similar cases can vary.

Things like drug use, and other things, some judges may remove the kids, others may order counseling programs to try to keep kids in the home,

[cdad]

What exactly are you asking here? You seem confused by the information your looking up.

California is one of the states that has two kinds of custody. So when your making a statement about custody you have to remember that.

1) Physical custody
2) Legal custody

If the parents are already sharing the child then the move away parent must prove that the detriment to the NCP is outweighed by the improvement to the child's welfare. And redoing the time with the NCP so they don't lose time nor funds is one of many ways it can go.

If your putting each case under a microscope then your going to get nowhere.

[ScottGem]

Or is this a homework question?

[ParentInCA]

My original question (no, its not homework :-) is the confusion between the 2004 La Masuga
Case and the 2003 SB 156 "move-away" legislation. These are contradictory to some extent. In fact, SB 156 was passed, in anticipation I believe, of the La Masuga case to preempt it (?) -- and was promoted by feminist groups who wished to retain mothers' ability to move out of state.

The factors given at the end of the La Musga decision which states as follows:

"Among the factors that the court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parent's proposal to change the residence of the child are the following: the children's interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children's relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody."

So my question is this: did the SB 156 legislation make the above move-away set of criteria from the La Masuga case inoperative?

[ScottGem]

First, may I call your attention to the guidelines for using the comments feature found here:

https://www.askmehelpdesk.com/feedba...ure-24951.html

This site has rules, guidelines and policies about how to use it and its features. There is a valid reason why I asked my question and your use of a negative comment was totally inappropriate. For those reasons, I've had the negative rating removed.

If this isn't homework, then why do you ask? If you are dealing with a situation where these cases might apply to you, then the better way to work with this site is to post YOUR situation and see what advice we can give. Not to try to get us to interpret case law that may or may not apply to you.

[Fr_Chuck]

Yes and to be honest, I have seldom seen any person ask about case law where it was not homework,

Since esp in faimily law, case law has less bearing than criminal. And even in criminal, the prior rulings do not have to apply to other courts, unless it is from appeals court, and then only to courts under that appeal court.