Child Custody
A challenging aspect of family law is the custody of the children (child custody plan is called “the parenting plan”). How do you split a child’s time with his/her mother and father when the parents no longer live together? Child custody can be critical whether the parents were married or not. A wide variety of developmental, family, and psychosocial factors must be considered and weighed to decide what is the best “interests of the child” custody arrangement for a given child.
Parents often feel that 50/50 is fair to them, yet parenting plans are not about what is fair to parents; the California standard is in the “best interests of the child.” In considering the “best interests of the children” standard, the court will look at the child’s health, safety, welfare, and education. In addition, frequent and continuing contact with both parents is the public policy of the State of California. But what “frequent and continuing” means in a given case is individualized. See Robert A. Simon, Ph.D.’s website
If not married, then a paternity case is initiated in the Superior Court; if married, then marriage dissolution is initiated (or there are other proceedings if not divorcing). All case types require a proceeding for determining child custody – if and only if the parents cannot agree on a parenting plan.
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Getting Ready for Securing a Child Custody Order
If the parents cannot agree on a parenting plan, then the courts have established procedures to assist in the parent’s decision-making. In the early stages of a case, a party prepares a Request for Order with an attached Declaration. Preparing the declaration is very important and should involve an attorney: Download the Declaration Form
This is the time when the decision is made on whether to fight and what to fight about in court before a judge. Attorney RoseAnn Frazee will discuss with you the important facts to be included in this Declaration which will be signed “under penalty of perjury.”
Physical Custody
This is also the time to determine what level of custody is desired: Joint physical custody gives both parents equal physical control over the child and the decisions related to the child or children. Joint physical custody is often described as a 50/50 parenting plan or time arrangement, but it does not have to be 50-50. The time can be 35% or 40%. The calculation all depends on the time spent by both parents, but the plan can still be “joint physical custody.”
If not joint physical custody, then “sole physical custody” sometimes incorrectly referred to as “primary physical custody” gives a parent the right to be the primary custodial and caretaker. With sole physical child custody granted to one parent, then the other parent often has a visitation schedule.
An evaluation of the child’s bonding with one parent or the other is critical at this stage. See Modification below for changes in child custody.
Legal Custody
Likewise, the parents could have Joint Legal Custody (can possibly be determined not related to physical custody). Joint Legal Custody means the parents must share the decision-making, or co-parent, regarding the child’s health, safety, education, and welfare, i.e., should s/he be taken to a doctor, what school should the child attend, in what extra school activities should the child participate, what religion and other activities. In other words, neither parent can make important decisions without discussing with the other parent and getting that parent’s approval. Even though the joint legal custody can be joint, some decisions can be delegated to the other parent. See Form 341(E) which completely explains the different decision-making required. Download the Joint Legal Custody Form
A parent could have exclusive decision-making authority over one or more topics. The judge can make certain aspects of legal custody sole without making a complete order for sole legal custody. If not joint, then sole legal custody can be awarded giving one parent the authority to make all decisions. Attorney RoseAnn Frazee can explain the pros and cons of joint and sole legal custody depending on the parenting plan.
Hearing Scheduled
When filing the Request for Order, the filing clerk will set a hearing to be held before a judge. Emergency hearings can be scheduled if the child is facing imminent risk of harm, such as abduction to another state or country. Yet, if not an emergency, then a procedure for a faster hearing is available.
Mandatory Mediation
After the Request for Order is filed, the court requires mediation before a hearing will be held. Mediation is where the parents meet with an experienced family law attorney to figure out how best to handle the care of the child/ren after considering each parent’s relationship with the child/ren. Download the Mediation Appointment Request Form
At the mediation, the parties’ attorneys are usually not present. If domestic violence is an issue, then the parties can meet one at a time with the mediator. Even though domestic violence is an issue with a parent, usually domestic violence does not affect the parent from visiting with the child/ren. The mediator will look at the parent’s work schedules, prior caring arrangements, availability of relatives in the care of the child/ren, and any other factors related to the children. If possible, the mediator will write an agreement for the parties to sign which the judge usually approves and makes an order of the court or if no agreement, the mediator will indicate that on a form and send the form to the judge. The mediator can make comments for the judge, but both parents must be able to see the comment. There are many reasons why the couple cannot reach an agreement. Each couple’s DNA is different. Mediation is a very time-consuming process for which the judges do not have time.
Hearing
If no agreement is reached in mediation, then the parties will appear for a hearing before the judge with or without attorneys. Before the hearing, if the parties are represented by attorneys, the court requires that the attorneys “meet and confer” to again determine if an agreement for the children can be reached. The judge will probably read the paperwork (that is why the paperwork is important and should be prepared by an attorney) submitted in the Request for Child Custody order and then ask questions of the parties individually. The judge has many choices:
Judges Can Issue Varying Orders
The legal standard for the judge to decide is “what is the best interest of the child or children?” Not an easy answer, especially when the judge does not have any experience with the child/ren or the parents. Note: an excellent attorney knows the judge and her/his courtroom.
Judge Can Encourage Settlement Among the Parents
Judges typically do not like being a parent to someone else’s children. However, if the parents cannot agree, the judge must make a decision on how to handle the children. Each judge is different in how they handle the hearings. A judge could make a tentative or a comment and then send the parents with or without their attorneys in the hallway to meet and confer and attempt again to come to an agreement.
Note: It can definitely be better for the parents to arrive at an agreement if at all possible. If the judge makes a decision not knowing your own children, then neither party may like the decision. Most judges will warn the parties of this happening.
Hold an Evidentiary Hearing
If the judge believes that s/he does not have enough information to make a decision, s/he can order an evidentiary hearing at another time to hear witness testimony, among other things:
Testimony of Mother, Father, Grandparents, Babysitters and Other Witnesses
At the hearing or after submitting a witness list to determine how much time is required for the evidentiary hearing, the judge could determine a date and time to take the testimony of others in contact with the child/ren.
Children’s Testimony
New laws enacted on January 1, 2012 (Family Law Code 3042 and California Rules of Court 5.250) have changed the landscape of children testifying. Many judges still do not desire to have the child or children testify; others are open to the children’s testimony. The judge will set the criteria for the testimony, i.e., in chambers, in the courtroom with only attorneys, etc. View the California Rules of Court for Children Testifying
However, a judge must hear from a child if 14 years old or older “unless the court makes a finding that addressing the court is not in the child’s best interest. “ CRC, Rule 5.250(c)(2). Basically, a child’s preference at any age should be considered in child custody cases.
Note: Child testimony is an often discussed issue between parents and attorneys dealing with Family Law cases. When parents are getting a Divorce, the children usually know more than their parents think and have “discoverable” information. The children most likely witnessed fights, arguments, or other “bad” conduct. Perhaps they knew of one parties misconduct and were asked to help hide it, or at least not disclose it. Also, the children frequently know there is more to the story than mom and dad can no longer get along. Accordingly, the attorney must thoroughly investigate the relevancy of the children’s testimony. RoseAnn Frazee has experience in children testifying.
Appoint Minor’s Counsel
However, a judge must hear from a child if 14 years old or older “unless the court makes a finding that addressing the court is not in the child’s best interest. “ CRC, Rule 5.250(c)(2). Basically, a child’s preference at any age should be considered in child custody cases.
Appoint a Child Custody Evaluator (often called a 730 Evaluation)
Under Family Code 3110 (Evidence Code 730), the judge and/or the parents can choose a doctor or other person specializing in child custody evaluations to interview school teachers, parents, the children, and others in contact with the children and take whatever action is necessary for the evaluation. Then the Evaluator reports back to the court, and the parties, in writing form and can also testify. This procedure can be very expensive starting at about $5,000 and upwards to $30,000, depending on the evaluation requirements.
Focused Evaluation
A focused evaluation can be conducted by one of the evaluators hired by the Los Angeles Superior Court. This evaluation is much shorter (a couple of hours in the morning) and cheaper (about $975). The evaluation is usually held in the morning, and then the evaluator reports to the judge that afternoon at which time the attorneys can ask the evaluator questions. There is usually no written report. Download the Focused Evaluation Form
Refer to the Social Services Agency
If Child abuse an issue, the Court may refer to Social Services Agency such as Child Protective Services.
Require Counseling for the Parents and/or Children
If there is a specific problem reported to the judge by the mediator or evaluator, the judge may order counseling for the parents and/or the children.
Modification
Until a child is 18 years old or graduates from high school, whichever is sooner (can go to 19 depending on graduating from high school), a parent may petition the court for a change in custody, meaning “modify” the custody now in force if there is a “significant change of circumstances.” At the same time, child support can also be modified (see child support section).
The same procedure as outlined above for the initial child custody would be required.
RoseAnn Frazee of Frazee Law Group has experience handling Child Custody matters for many years. Since she was divorced with three young children, she can identify with the problems in shared custody, along with the many years of helping parents cope with separation and the children’s care and reactions by all parties.
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