Remedies for the Other Parent’s Failure to Assume Caretaker Responsibility

Remedies for the Other Parent’s Failure to Assume Caretaker Responsibility

Custody and visitation issues are often hotly contested, and rightfully so. Both parents usually want to continue strong relationships with their children despite the fracture of their own relationship. But there are times when one parent fails to take advantage of his time with the children, either in the form of custody or visitation. What happens if, as a result, the mother has to cancel work? What if she has to hire someone to babysit so that she can carry on with her own schedule?

Fortunately, the California Legislature has enacted a law that helps a parent faced with this situation. California Family Code § 3028 gives judges the power to “order financial compensation for periods when a parent fails to assume the caretaker responsibility.”

To obtain this compensation, the custodial parent must file a motion or an order to show cause alleging one of two circumstances:

  • That she has spent at least $100 due to the other parent’s failure; or
  • That the other parent has failed to exercise his custody or visitation rights at least three times.
In addition, the other parent’s caretaker responsibility must be spelled out in either an order or joint physical custody or an agreement between the parents. An oral arrangement between the parties will also suffice.

Recovery is limited to “reasonable expenses incurred for or on behalf of the child” that result from the failure to assume caretaker responsibility. For example, these expenses might include payment to a babysitter, day care, or other third party provider, or the value of the parent’s lost wages.

The law specifically requires the court to award attorney’s fees to the party who prevails if she can show the other party’s ability to pay.

It is likely that you will only become aware of certain opportunities, like the ability to recover expenses for unused visitation time, if you’re working with an experienced California family lawyer.  If you’re involved in a divorce or separation, you should contact an attorney with substantial experience in the area who knows the mechanics of how family law matters are handled. To obtain experienced legal help, contact the Law Offices of Judy L. Burger at (415) 259-6636 to discuss your case.

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