Under California Law, the court may issue a custody and visitation orders in 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.
Every effort should be made to settle custody and visitation issues out of court. To contest custody and visitation is a serious decision that almost in all circumstances ends up counter to the best interests of the child or children involved. If you decide to contest custody and/or seek a visitation schedule because you just cannot reach an agreement with your ex-spouse/domestic partner, the court's decision will guided by several factors, such as maintaining status quo (present situation), willingness to accommodate the other parent's rights, child preferences, and domestic violence factors.
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, you have 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 must 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.