CHILD CUSTODY

Few issues in a dissolution of marriage are more emotionally charged than the issue of the proper placement of children. Parental motivations vary wildly. When parents can not agree on what is best for their children, the Court will have to make that determination. In a contest between two parents, the primary issue is whether it is in the best interest of the child to be placed with mom, or with dad primarily and what contact the child should have with the non-primary custodial parent. If the contest is between a non-parent and a parent, the non-parent must first prove that it would be detrimental to the child to be placed with a parent. It is not an easy task to present evidence to help a Court determine the elusive 'best interest' of a child or children. Absent substantial information tending to suggest a contrary result, experience dictates that the court will first seriously consider the existing pattern of child caring that the parents have already established for their children. Usually if the wheel is not broken, there will be little need to fix it. In many instances the court will generally assume that the pattern of conduct and sharing entertained and practiced by the parents prior to the filing of the divorce is at least an appropriate starting point. Although the pattern previously established may not be perfect, and may need some fine tuning, most courts feel safe in adopting that plan or a very similar plan because it is a parenting plan which the parents themselves have previously set in place for their children.

It is only when the parents have extreme conflict and are unable to act consistent with what the children's best interests that the court becomes more proactive. In other words, when one parent no longer accedes to the other parent's time or practice, a conflict arises and the court becomes more pro-active. The status quo is a persuasive indicator of something which, absent contrary indications, has not harmed the children and, presumably, has aided in their development and maturation process. Minor changes in the sharing plan should be easily accommodated by parents, and when resisted for valid reasons, should be harmoniously and expeditiously processed through a mediation or court adjudication. Conflict handled at an early stage is generally handled with less friction and animosity than allowing issues to go unresolved and fester. These festering issues often times become overwhelming and allows the anger or frustration of each party to increase due to the usual lack of communication.

Where parental conflict exists, often times judges and or parents involve the assistance of psychologists to help determine a parenting plan that serves the best interests of the minor child. Once appointed by the Court, the psychological evaluator then submits each of the parents, their significant others, and usually the child or children to a battery of psychological tests as well as clinical observations. A determination is made as to whether either parent suffers from any psychological dysfunction. Essentially, the psychologist is attempting to ascertain whether each parent falls within the range of 'normal' pursuant to their barometer. Rarely does a parent fall outside the broad range of normalcy. As such, having found that each parent falls within that broad range of normalcy, although each may be on different ends of the spectrum, the psychologist then must make some sort of recommendation.

The psychologist will look into the history of the child's life and the parenting plan which has existed over time, giving some weight to the most recent form of parenting plan. The evaluator, still desiring to refrain from disturbing the child's life as much as possible, attempts to project the existent circumstances into the future making minor alterations or suggestions. On the other hand, if there truly is good reason and a substantial basis for dramatic change, many psychologists will so recommend. After the psychologist makes his or her recommendation, the parents may then agree to it or choose to continue with the litigation. Absent an agreement as to the recommendations, the parents then look to the court to determine the appropriate parenting plan. The court seeks to determine what has happened prior to and since the psychological evaluation.

This entire process at times is unnecessary in that the parties, at an early stage, can attempt to reach agreement by sharing their children as parents and making appropriate decisions jointly for their children. I tell my clients that they essentially have three choices when it comes to parenting their children. They can and should make those decisions jointly, with a vision towards continuing on as parents, even though they no longer wish to remain husband and wife. The second choice is to jointly hire and pay for a psychologist to represent and advocate a parenting plan on behalf of their child. The third choice is for the parents to hire lawyers and spend hundreds of dollars per hour so that some stranger wearing a black robe can make the decisions that parents are usually better off making for themselves.

Litigation is necessary when one or both of the parents totally fails to engage in good faith communication focused on their child's needs, including their health, education, and welfare. Communication is the key. The problem is that the parents frequently have lost the ability to communicate. This is exemplified by the fact that the marriage frequently failed because of the lack of communication between the parents. So, having found that the parents are known not to be able to communicate which lead to the irreconcilable difference and the ultimate breakdown of the family, those same non-communicating parents must now learn a new art of communication or the custody and visitation questions will be decided for them instead of by them.

The various Family Law Departments of the Superior Court provide a mediation service which assists all parents who have a dispute regarding custody and visitation. This service is mandatory in most jurisdictions where any parenting dispute exists. The court resources are often times limited and the skills of the mediator may be acceptable, however, private mediation is also available and can provide a greater opportunity for the parents to explore issues as more time can be taken to address the particulars of each family situation. Attorneys are not allowed to be present during the custody and visitation mediation when conducted through the auspicious of the Superior Court.

An attorney's involvement in the process is to assist the parent in becoming ready for the mediation appointment and focused on the best interest of the child or children. Some attorneys refer the parent to an appropriate psychological practitioner for purposes of preparing that party for the court ordered and sponsored mediation. An experienced attorney can be of great assistance in the preparation for the mediation conference. Yet, the attorney's true contribution will be in formalizing any agreements reached and/or litigating any dispute unresolved through the mediation process.

The legislative policy in custody decisions is set forth in Family Code Section 3020, which states as follows:

§ 3020. Legislative findings and declarations; health, safety, and welfare of children; continuing contact with parents

(a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.

(b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011.

(c) Where the policies set forth in subdivisions (a) and (b) of this section are in conflict, any court's order regarding custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.

Family Code Section 3011, sets forth the considerations for determining the best interests of a minor child. It states as follows:

§ 3011. Best interest of child; considerations

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:

(a) The health, safety, and welfare of the child.

(b) Any history of abuse by one parent or any other person seeking custody against any of the following:

(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.

(2) The other parent.

(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.

As a prerequisite to the consideration of allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this subdivision, "abuse against a child" means "child abuse" as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means "abuse" as defined in Section 6203 of this code.

(c) The nature and amount of contact with both parents.

(d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. 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.

(e)(1) Where allegations about a parent pursuant to subdivision (b) or (d) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (b) of Section 6323.

(2) The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.

Family Code Section 3002, states as follows:

"Joint custody" means joint physical custody and joint legal custody.

Family Code Section 3003, states as follows:

"Joint legal custody" means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.

Family Code Section 3004, states as follows:

"Joint physical custody" means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.

Family Code Section 3006, states as follows:

"Sole legal custody" means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.

Family Code Section 3007, states as follows:

"Sole physical custody" means that a child shall reside with and be under the supervision of one parent , subject to the power of the court to order visitation.

RECOMMENDED READING:

The following books are helpful to divorcing or separating parents who wish to go in separate directions in their lives while at the same time actively parenting their children: