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Estatutos Estatales Seleccionados: Guam

Estatutos Seleccionados: Guam

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10 de diciembre de 2020

8404. Criteria and Procedure in Awarding Custody

In actions for divorce, separation, annulment, separate maintenance, or any other proceeding where there is at issue a dispute as to the custody of a minor child, the court may, during the minority of the child, make such order for the custody of such minor child as may seem necessary or proper. In awarding the custody, the court is to be guided by the following standards, considerations and procedures:

(a) Custody should be awarded to either parent according to the best interest of the child.

(b) Custody may be awarded to persons other than the father or mother whenever such award serves the best interest of the child. Any person who has had de facto custody of the child in a stable and wholesome home and is a fit and proper person shall prima facie be entitled to an award of custody.

(c) If a child is of sufficient age and capacity to reason, so as to form an intelligent preference, his wishes as to custody shall be considered and be given due weight by the court.

(d) Whenever good cause appears therefor, the court may require an investigation and report concerning the care, welfare and custody of any minor child of the parties. When so directed by the court, professional personnel of the Department of Public Health and Social Services shall assist the court by making investigations and reports which shall be made available to all interested parties and counsel before hearing, and such reports may be received in evidence if no objection is made and, if objection is made, may be received in evidence provided the person or persons responsible for such report are available for cross-examination as to any matter which has been investigated.

(e) The court may hear the testimony of any person or expert produced by any party or upon the court’s own motion, whose skill, insight, knowledge or experience is such that his testimony is relevant to a just and reasonable determination of what is to the best physical, mental, moral and spiritual well-being of the child whose custody is at issue.

(f) Any custody award shall be subject to modification or change whenever the best interests of the child require or justify such modification or change, and whenever practicable, the same person who made the original order shall hear the motion or petition for modification of the prior award.

(g) Reasonable visitation rights shall be awarded to parents and grandparents and to any other person interested in the welfare of the child in the discretion of the court, unless it is shown that such rights of visitation are detrimental to the best interests of the child.

(h) It is legislative policy that children spend as much time with each of their parents as possible, when the parents are not living together. Therefore, in determining visitation of minor children on Guam with non-custodial parents living on Guam, the court shall, to the greatest degree possible, order visitation for minor children (pendente lite and permanently) with non-custodial parents such that the children spend more or less equal amounts of time with the custodial parent and the non-custodial parent during non-working, non-sleeping, non-school time, subject to the following:

(1) The proposed visitation is not found by the court, on evidence presented, to be injurious to the welfare of the child;

(2) The non-custodial parent is willing to accept such visitation;

(3) The non-custodial parent is not found by the Court to be an unfit person to have such visitation;

(4) The visitation is not found by the Court to interfere with the child’s schooling;

(5) Unless the Court finds that it is not in the best interests of the child, non-custodial parents or the children’s grandparents shall be given consideration in providing child-care for their minor children or grandchildren, when visitation orders are prepared;

(6) In determining visitation rights under this subsection (h), the court shall take into account the employment of each parent and the time the child spends in school or in extracurricular activities;

(7) Based on proof presented, the court may take into account other factors respecting visitation which would affect the welfare of the minor child or children;

(8) The court may also take into account the time a child spends with each parent and the expense incident thereto in awarding child support;

(9) The court may make such orders as are appropriate in carrying out the provisions of this subsection (h);

(10) This subsection (h) shall be effective only as to actions or motions filed after its effective date, and shall not apply to any actions or motions filed prior to its effective date. In addition, enactment of this subsection (h) shall not, in and of itself, constitute a change in circumstances as to warrant the re-opening of custody proceedings for which orders had been entered prior to such enactment.

(i) It is legislative policy that children should not be exposed to family violence because, even when they are not themselves physically assaulted, they suffer deep and lasting emotional effects from exposure to family violence; and

(j) The Court may award visitation or custody to a parent who committed family violence only if the Court finds that adequate provision for the safety of the child and the parent who is a victim of family violence can be made; and

(k) In every proceeding in which there is at issue the modification of an order for custody or visitation of a child, the finding that family violence has occurred since the last custody or visitation determination constitutes a finding of a change of circumstances; and

(l) In a custody or visitation order, a Court may:
(1) order an exchange of a child to occur in a protected setting;

(2) order visitation supervised by another person or agency;

(3) order perpetrator(s) of family violence to attend and complete, to the satisfaction of the Court, a program of intervention for perpetrators or other designated counseling as a condition of the visitation;

(4) order either parent or other party to a custody or visitation order to abstain from consumption of alcohol or other intoxicants during the visitation and for twenty-four (24) hours preceding the visitation;

(5) order perpetrator(s) of family violence to pay a fee to defray the costs of supervised visitation, or to pay for the services of a guardian ad litem appointed by the court;

(6) prohibit overnight visitation;

(7) require a bond from perpetrator(s) of family violence for the return and safety of the child; or

(8) impose any other condition that is deemed necessary to provide for the safety of a child, a victim of family violence, or other family or household member.

(m) Whether or not visitation is allowed, the Court may order the address of a child or a victim to be kept confidential.

(n) If the Court allows a family or household member to supervise visitation, the Court may establish conditions to be followed during visitation.

(o) In addition to other factors that the Court must consider in a proceeding in which the custody of a child, or visitation by a parent is at issue and in which the Court has made a finding that family violence has occurred:

(1) the court shall consider as primary the safety and well-being of the child(ren) and of a parent or guardian who is the victim of family violence; and

(2) the court shall consider the perpetrator’s history of causing or attempting to cause bodily injury to another family or household member; or placing a family or household member in fear of bodily injury.

(p) If a parent or guardian is absent or relocates because of an act of family violence by the other parent, the absence or relocation is not a factor that weighs against the parent or guardian in determining custody or visitation, so long as the child(ren) are not removed from Guam without prior Court authorization.

(2) Mediation.

(a) Unless otherwise provided by law, the Court, in cases pursuant to this Section may order the parties to be referred to Mediation with respect to custody and visitation in accordance with the standards set forth in Part 1 of this Section and rules and regulations established and promulgated by the Supreme Court of Guam.

(b) The Supreme Court of Guam shall establish and promulgate any rules and regulations necessary to carry out the provisions of this Section, and mediators shall be selected and compensated in accordance with rules and regulations established by the Court. The rules and regulations promulgated by the Supreme Court pursuant to this Section shall be submitted to I Liheslaturan Guåhan for approval. Said rules and regulations shall be deemed approved unless otherwise acted upon by I Liheslaturan Guåhan within ninety (90) days of receipt.

(c) Mediation should be accessible to all parties regardless of financial status, and the Judicial Council of Guam is authorized to enact fees to implement the provisions of this Section.