Studies show that children of divorce suffer long-term irreversible damage when exposed to prolonged conflict during a divorce. If parents can work together (with the help of a trained mediator) to resolve their differences, their children will emerge from the trauma of divorce healthier and happier. The film "Split" shows divorce from the eyes of the children. If you listen to their voice, their solutions are quite simple yet brilliant.
Overview of the Law
Under California Law, the court may issue a custody and visitation orders in a variety of matters including marital litigation (marriage dissolution, nullity or legal separation), domestic partnership litigation, an action for exclusive custody, a Domestic Violence Prevention Act (DVPA) proceedings, Uniform Parentage Act matters, proceedings brought by the local child support agency, grandparent's visitation proceedings, visitation by a former legal guardian, and dependency proceedings.
best interest of the child
The guiding standard is best interest of the child. Family Code section 3011, under which the court shall consider 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 considering 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, except as provided in Section 3046.
(d) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances 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."
Every effort should be made to settle custody and visitation issues out of court. If you contest custody, the court will look at two main areas: child's health, safety and welfare AND frequent and continuing contact with both parents.
Maintaining the So-called Status Quo
Courts do not want to frustrate the custodial arrangement in existence prior to the hearing, especially for young children. So, if the children were taken care of primarily by one parent and especially if they are young, the court will want a showing of detriment to them if that arrangement was to be changed at the time of the hearing. This stems from the child's need and right for stability and continuity. In fact, it has been determined to be the most important criteria for determining the child's best interests. Courts do not want to cause harm to the child by disrupting the established arrangement unless it is shown that it is harmful to the child.
Willingness to Accommodate the Other Parent's Rights
If one parent is determined to keep the children away from the other parent without a valid reason, that parent will face a hard time in court. Unless the children's health, safety and welfare would be jeopardized, the court must make orders ensuring frequent and continuing contact with both parents. Children thrive most when they have open access to both parents. Contesting custody should never be justified by wanting to impede the child's relationship with the other parent, unless in cases of abuse. The court, however, is not constricted by the frequent and continuing contact policy preference and has broad discretion to determine the best custodial arrangement in light of all the circumstances.
The court will likely want to hear from older children (teenagers) about their wishes and it may have significant impact on custody. If a child is 14 years old or older and wants to address the court about custody or visitation, s/he must be allowed to do so unless, of court, the court determines that it would not be in that child's best interests. If a child is younger than 14, the court must first determine that addressing the court would be appropriate pursuant to the best interest of the child's standard. Sometimes, courts listen to children as your as 7 or 8 years old. There are many guidelines on how to determine if the child wants to address the court and how that should take place. Look for our blog on more information about that subject.
The law presumes that as a perpetrator of domestic violence, a parent cannot be awarded either joint or sole custody of a child. That presumption is rebuttable, which means that the perpetrator of domestic violence may show by a preponderance of the evidence that an award of custody would be in the child's best interests; s/he completed a batterer's program and alcohol/drug abuse counseling (if applicable); s/he completed parenting class; s/he is in compliance with the terms of probation or parole (if applicable) and in compliance of the terms of the restraining order; no other acts of domestic violence were perpetrated. However, the perpetrator cannot use the argument that the child needs "frequent and continuing" contact with her or him as a way to show that an award of custody is the child's best interests.
FILING FOR CUSTODY/VISITATION WITH THE COURT
If you file a Request for Order (RFO) to have the court decide issues of custody and visitation, the court requires you and your spouse/domestic partner to attend mediation before the hearing. Failure to participate in mediation may prevent that parent from being heard in court on the issue of custody/visitation. In cases of domestic violence, mediation must be conducted with each parent separately, if the protected party (or party that alleges domestic violence in a declaration signed under the penalty of perjury) so requests.
If mediation is unsuccessful, party has a right to a hearing. Contested child custody cases have priority on the court's calendar and if it is one of the issues it may be bifurcated for separate trial.
The court must determine child custody using the best interest of the child standard. Family Code gives the courts widest discretion to select a parenting plan that is in the best interest of the child. It is very hard to win an appeal of a custody award because of the court's widest discretion.
Sole Custody Orders
A sole custody (physical and legal) gives one parent primary physical control of the child with the right to make decisions over the issues of where the child will live, his/her health, education and welfare. The noncustodial parent has visitation rights and rights to bring modification proceedings upon a showing of changed circumstances.
A parent may also be awarded sole physical custody with joint legal custody arrangement, which means that the child resides with one parent and all parenting decisions (health, education and welfare) are made together with the other parent.
Primary physical custody, which you see often, has no legal meaning. It is used only to signify that one parent has more of a physical responsibility for the child.
Sole legal custody if awarded by itself (without sole physical custody) means that the parent has decision making rights over issues such as child's health, education, and welfare but not residence and supervision.
Joint Custody Orders
Joint custody award means that both parents have significant periods of physical custody of the child and that the time must be shared to ensure that the child has frequent and continuing contact with both parents (not necessarily equal time.) Joint legal custody is when both parents equally make decisions about the child's health, education and welfare.
Under Family Code section 3040(a) custody should be granted in the order of 1) to both parents jointly or to either parent without preference of gender; 2) if to neither parent, then to person in whose home the child has been living in a wholesome and stable environment; 3) to any other person deemed by the court to be suitable.
If a child has three parents, the court has recognized that separating a child from a parent has "devastating psychological and emotional impact" on a child. Therefore, the court must decide how to allocate custody among the three parents.
When the court decides custody, it must also grant the other parent reasonable visitation rights unless it is shown that visitation would be detrimental to the best interest of the child. If a parent requests visits while the proceeding is ongoing, the court must make such orders. The court has to first and foremost ensure frequent and continuing contact of the child with both parents. However, if there is an issue of child abuse or domestic violence, the court has full discretion to stop visits altogether or order supervised visitation (monitored by either a professional monitor or another person approved by the court.)
The court cannot consider issues of child support payments or failure to pay support, parent's lifestyle, sexual preference, religious beliefs unless evidence shows that these are detrimental to the child.
child custody evaluations
Even if a child custody evaluation is merely possible in your case, you should start your preparation right away. The preparation process is not something you can do in an afternoon or a weekend. It takes methodical and long-term commitment to work on yourself as an individual and a parent. If you are going through a tough divorce and carrying a heavy emotional burden, you must start early in the case to unpack those heavy emotional bags. Child custody evaluation is not a place for therapy. It is not about you and your needs. Emotional work must be done by you long before you meet with the evaluator.
It is a really good idea to start individual therapy to process the hurts from your failed marriage. Some people start writing in journals to help them reflect on themselves and their mistakes. Meditation is particularly helpful way to find yourself again and emerge from the mud of a nasty marriage and in turn nasty divorce. Meditation also helps you get connected to your breath. Remembering to breathe is essential as you go through any state of your divorce but particularly when you sit facing the evaluator. The breathe will have a calming effect and open pathways to self-discovery. It is vital that you give yourself time while doing some self improvement and letting go work. It should start long before the evaluation starts.
So, there are some do's and don'ts of an evaluation.
1) Stay focused on the needs of the child rather than your issues with your ex
2) Be open to various custody/visitation plans even though you prefer a particular one but be ready to explain why you prefer what you prefer
3) Be honest
4) Be ready to discuss the weaknesses/strengths of your ex as a parent
5) Be ready to discuss your own weaknesses/strengths as a parent
6) Be ready to discuss your relationship history without being overly angry, sad, emotional
7) Be attentive to your child during the observation period
8) Understand that your child/children need the following:
a) Your children have the right to love both parents and to have access to each parent without interference.
b) All children benefit from an absence of conflict between their parents. Children do better if parents cooperate and work together.
c) Children need to be safe, secure and protected from physical, emotional and sexual abuse.
d) Children of different ages have different needs. Two-year old children do not need the same parenting arrangements as 12-year-old children. The custody evaluator will consider your children’s specific needs as well as their adjustment to home, school and their social environment.
e) Children need continuity. Parenting schedules should be followed so that children can depend on and look forward to time with each parent.
f) Children do best when parents support a relationship with the other parent. Don’t ask your children to choose between you and the other parent.
9) If evaluator gives any conclusions, stay calm
1) Do not be vindictive/overly critical of your ex
2) Do not focus on your relationship issues
3) Do not expect the evaluator to solve your issues
4) Do not ask the evaluator to be your therapist
5) Do not say negative things about your ex
6) Do not try to manipulate the evaluator
7) Do not cry, shout, become angry (if strong emotions come up, breath and be present)
8) Do not exhibit negative attitudes:
• Failing to recognize any positive qualities in the other parent
• Claiming that the other parent can do little or nothing to repair the damage
• Lack of perspective on the client's own role in the conflict
• Perceiving no room for improvement by the other parent
9) Do not dwell on the past if the issue has been resolved (ex. do not discuss ex’s alcoholism if ex stopped drinking)
10) Do not react too emotionally if evaluator expresses favoritism (or says something outrageous)