If you find yourself facing a divorce and you have children, your primary concerns are certainly centered upon your children. Most people we see are focused on how to protect their children from the turmoil of a divorce. Most parents hope to make the children realize that their own lives will go on as unchanged as possible and that the love the parents feel towards them is not altered by the divorce. The studies show that if the parents act in unison in their approach to the children and reassure them constantly, that the effects of divorce can be minimized.
The majority of children in California now have divorced parents. The author knows of one child who commented upon coming home from a new school that she felt somewhat isolated since she was the only student with parents that were not divorced. No longer do the children face the social stigma that was often encountered fifty years ago. If the parents work together, the child will not be made happy by the event but will not be traumatized.
That should be the goal. Too often, the emotions inherent in divorce, the anger parents feel towards each other, can alter that unified approach. Indeed, at times one parent entirely disappears from the scene, to the consternation (or, at times, relief) of the children. And, sadly, some parents make the mistake of using custody rights as a bargaining chip or to punish the ex spouse. Or fears that the other parent intends to do so. See our article "Buying Peace as the Marriage Dissolves."
All parents face the basic questions: How will custody and visitation be determined? What financial obligations will each parent have? How do I make sure that the arrangement with respect to custody and visitation is best for my children? Who decides and what criteria is utilized?
Divorce is one of the most difficult times in a person’s life. When children are involved, emotions run higher, guilt and anxiety over their well being can take over, and getting through the process can feel like finding your way through a labyrinth.
The reader should review our articles on Basics of Divorce Law in California before reading further to understand the basic procedures and timing that one encounters when petitioning for dissolution of marriage in California.
The reader should also review our article on Child Support and Spousal Support in California to have a basic understanding of each parent’s financial obligations with respect to children of the marriage, as well as financial obligations to the ex-spouse.
Clearly, it is important to learn about the child custody and visitation options that are available and the legal standards that apply. In many cases, divorcing couples can ultimately agree on custody and visitation issues without the need for a court order issuance after litigation.
Know that you can have some control over whether it will be a cooperative or unruly process and experience. With children involved, it is of the utmost importance, for their sake, to attempt to maintain cordial relations with your ex-spouse. You will have many important decisions involving the welfare of your children that you will likely have to decide upon together.
However, if your ex-spouse is incapable of working with you in this regard or wants a fight, you will have little choice but to fight back. A vindictive spouse will make the experience much more difficult, but the stakes are too high to not do what must be done to secure a just end result for the child. It may be your most important duty as a parent.
To do this right you will need a trusted team of advisors in place to guide you to a fair and beneficial resolution. This does not mean only attorneys. You do need the right team of attorneys, but you should also gather a good team of family counselors, perhaps psychologists and other potential experts that will render opinions on what is in the best interest of your children in terms of a custody arrangement. Of course, you will need your close family and friends at your side as well.
You must educate yourself as to both what is best for your child and what rights and obligations are imposed upon you by the law. You gather your best team, seek all the support you can from family and friends, and, above all, remember that you are a parent with duties to your child that supersede all.
Let us have a look at the basic law with respect to child custody and support in California.
The Basic Law:
Types of Custody.
The duty to provide day-to-day care of a child and the right to direct the child's daily activities is known legally as physical custody.
Legal custody means the rights and responsibilities associated with decisions regarding the child's upbringing.
Many options regarding the division of custody rights and responsibilities between divorcing parents exist. Courts encourage parents to work together to raise their children even after their marriage has ended.
Custody arrangements commonly include the following:
Sole Custody. Sole physical custody occurs when one parent retains the exclusive, primary right to have the child live with him or her. Sole legal custody occurs when one parent has the exclusive right to control the child's upbringing. The most common type of sole custody ordered by the Court in California is sole physical custody with joint legal custody and a generous visitation schedule for the non-custodial parent. When one parent ends up with the primary responsibility for the couples’ children, the other parent, known as the non-custodial parent, usually has a right to maintain contact with the children through ongoing reasonable visitation.
Joint Custody. In joint custody, parents share responsibility for decision-making, for physical control and custody of the children, or for both.
Split Custody. Split custody is a less popular resolution where each parent takes custody of different children.
Shared Parenting. Shared parenting is a relatively new concept in child custody that has been adopted in several states. In shared parenting, children usually spend equal amounts of time with each parent and the parents share legal and physical custody. The studies seem to indicate that this type of custody benefits the children the most assuming both parents are responsible adults.
Determination of Custody and Visitation
The welfare of the child is the primary concern of the courts and if the child’s welfare is somehow threatened, the court can make decisions that one or both parents dispute. This, however, is not common.
Divorcing couples often tackle custody and visitation issues as soon as they separate. Courts generally honor both long-term and short-term custody arrangements agreed to by parents. When couples do not agree, procedures exist throughout the divorce process to resolve custody conflicts.
Common procedures used to resolve custody issues include:
Temporary Hearings. The family court holds a temporary hearing shortly after the initial papers are filed. If custody is contested at this point, the court will issue an order deciding custody that will be in effect until the court enters its final divorce decree.
Custody and Mandatory Mediation. Most states now require parties in a contested divorce to attempt mediation. Mediation is a form of alternative dispute resolution in which divorcing couples work with a specially trained neutral third party to resolve some or all of their disagreements. Couples who resolve their custody disputes through mediation can include a provision in their final divorce decree making mediation mandatory to resolve future custody and visitation disputes.
Custody Evaluations. If the parties are unable to reach an agreement regarding custody, most courts will order a custody evaluation prior to trial. The custody evaluation is made by an outside expert on whose assistance the court will rely in ordering a child custody arrangement that is in the best interests of the child. The opinion of the expert is usually of great weight with the court.
Custody Trials. Every state has statutes and procedures for the legal resolution of disputed child custody. Most courts decide contested custody cases based upon a determination of what arrangement is in the best interests of the child. Factors considered in determining custody arrangements include the child's age, the child's attachment to the parent who has been the primary caretaker, the physical and mental health of each parent, the existence of domestic violence and the child's wishes.
Factors in Determination of Custody and Visitation
The Code makes clear that custody and visitation determinations are to be made from the standpoint of the child's best interest (Cal. Fam. §§ 3011, 3020, 3040, 3041). The equities, feelings and desires of the contesting parties are only a factor to the extent they affect the child's best interest.
In making the "best interest" determination, the court can consider any "relevant" factors. (Cal. Fam. § 3011). The court "must look to all the circumstances bearing on the best interest of the minor child."
However, among all the relevant factors, trial courts must consider the following (Ca Fam § 3011):
1. Child's Health, Safety, And Welfare: A "best interest" determination must take into account the child's health, safety and welfare. (Ca Fam § 3011(a); see also Ca Fam § 3020(a),(c)). This is a paramount policy concern.
2. History Of Physical Abuse: The court must also consider any history of abuse by one parent or any other person seeking custody against the child, the person seeking custody, or the current spouse (Ca Fam § 3011(b)). As a prerequisite to consideration of allegations of physical abuse, the court may require, "substantial independent corroboration" . . . including, but not limited to, written reports by law enforcement agencies, child protective services, etc.
3. Certain violent crimes restrict custody or unconditional visitation awards.
4. Stability And Continuity Of Environment: Although not reduced to express statutory terms, a significant component of the "best interest" assessment is the policy goal of protecting a stable custody arrangement. "As we have repeatedly emphasized, the paramount need for continuity and stability in custody arrangements--and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker--weigh heavily in favor of maintaining ongoing custody arrangements." (Marriage of Burgess (1996) 13 Cal.4th 25, 32-33, 51 Cal.Rptr.2d 444, 449-450 (emphasis added); see Burchard v. Garay (1986) 42 Cal.3d 531, 538, 229 Cal.Rptr. 800, 804-805)
5. Separation Of Siblings: California policy affords strong protection to sibling relationships. Absent compelling circumstances, such as extraordinary emotional, medical or educational need, an order separating siblings between custodial households ordinarily will be reversed as detrimental to the children's best interest. (Marriage of Williams (2001) 88 Cal.App.4th 808, 814-815, 105 Cal.Rptr.2d 923, 927-998)
6. Child's Wishes: The court must "consider" and give "due weight" to the wishes of children who are of "sufficient age and capacity to reason so as to form an intelligent preference as to custody." (Ca Fam § 3042(a); see also Ca Fam § 3030(c)(1)). Put simply, the older the child, the more weight is normally given to his or her wishes.
Modification of Custody and Visitation
Once the issues of custody and visitation have been resolved, either by the court or the by agreement of the parents, specific procedures must be followed to change the arrangement. If the parents reached their agreement through mediation, they may have to go back to mediation to make any modifications. If custody was established by a court order, the parents must typically petition the court to make any modifications.
In order to support a request for a change to a custody or visitation arrangement, the parent seeking the modification must show a substantial change in circumstances. Some courts will only consider a request for modification within a certain number of years after the original custody determination, but courts will almost always consider a request for modification if there is a showing that the child is endangered by the current custody arrangement. Some states place residency limitations on requests to prevent parents from shopping for friendly rulings in different states.
A common cause of a petition to alter custody is the relocation of one parent to a distant locale. The criteria utilized above are utilized in the review of the request with the court normally looking closely at the reason the parent is leaving the immediate locale. This issue, which is common in the current employment climate, can be addressed in agreement entered into by the parties and is recommended by most experts in the field.
A veteran of thirty five years in the courts once told the writer that the degree of tension in the court depends on what the fight is about. He had litigated commercial disputes, criminal law and, ultimately, divorces. “Money is important but it’s what is easiest to fight about. You can always make more money so a loss is not always disastrous. Just not good. But it’s when you are fighting for someone’s freedom…or the future of their children…that the temperature in the court goes up fifty degrees. When the results of a bad decision are not made whole by making some more money next year. When lives can really be changed by a bad result. When it really, really matters.”
It took its toll. He died an alcoholic. But he fought for his clients…and always told them to fight only as a last resort. “You don’t want your kids bounced around in a court unless you have no choice,” he would say over and over. “It’s too important to their future to let the man in the black robe decide. You are the parents. You decide. Only come to me to fight it out if you have no choice.”
He was right. Custody is not to be taken lightly. It will alter the future of your child. Find out what is best for the child, try to work with your ex spouse to achieve that, and only fight if you must. What you must remember is that “keeping your cool” is usually best for your children, and best for you. You must keep your emotions in check to be certain the end result is a child custody and visitation arrangement that is best for your children.
But as another client once told the writer as she walked out of the court after a tough custody fight, “I’m a mother bear when it comes to my kids. I will do anything…anything…to protect them. I hate court. But it’s part of my job, as I see it.”
And she was right, too.