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.
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.
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.
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.