Initial Determination of Child Custody

“Best Interests of the Child”

The bottom line consideration for a court in determining custody in a contested child custody case is the child’s “best interests.” This decision is largely within the trial court’s discretion.

Child Custody: Legal and Physical Custody, Joint and Sole Custody.

Child custody involves two aspects. First is what is called legal custody. This custody determines who has the right to make decisions regarding the health, education and welfare of the child. Typically, the courts in California will Legal Custody determines who makes decisions about the health, education and welfare of the children. Physical Custody concerns where the child lives. give each parent joint legal custody, unless it is shown that one parent, either due to their being difficult or not being available, e.g., incarcerated or otherwise uninvolved, would undermine a joint legal custody arrangement. In such circumstances, the Court would award the other parent sole legal custody.

The second type of custody—and this is the one which most people mean when they say “custody”—concerns physical custody or with which parent will the child physically reside. In making the initial determination of physical custody, the courts will use the “best interests of the child” standard. The courts will look to a variety of factors in reaching this conclusion, including: what has been the past pattern or “status quo” of custody and care for the child? Where has the child been residing up to this point? Are there any health concerns or risks for the child if he/she is with one parent versus the other? Are there any allegations or past acts of domestic violence against one parent and/or the child? If custody is awarded to one parent, will that parent permit or interfere with the other parent’s visitation rights?

Mediation is Mandatory in Contested California Child Custody Disputes

In making these factual inquiries, most counties in California require the parties to be interviewed by a qualified mediator who has been selected by the Court. These mediators are usually part of the family court services department who work on a regular basis with the family law courts and are experienced in child custody and visitation issues. In some counties this is called a screening but the process is the same. The mediator will interview both parents to learn all facts necessary to make a custody recommendation. In some circumstances, the mediator will need to interview the child, if the child is of sufficient age and mental and emotional capacity to express a preference as to custody, especially if the child is older, e.g., fourteen and older, because an older child’s desires about where to live are given significant weight by the courts in making a custody determination.

In some cases, where, for example, there are allegations of drug and/or alcohol abuse by one parent, or where one parent wishes to move away, that the mediator and/or the court will recommend that this matter be referred to a private child custody evaluator. There are psychiatrists or psychologists with experience in custody issues. These are private professionals and the parties will be responsible for paying their fees (which can anywhere from $5000 and up), either jointly or one party will be ordered to pay the full cost with the right to seek reimbursement from the other party later.

In either case, when the mediator or private custody evaluator concludes his/her investigation, he/she will write up a report that will include any agreements they parents have reached and, in those areas on which there is no agreement, the mediator will make various recommendations regarding custody and related issues. This report will be presented to the parties and their attorneys (if any) and to the Court. If neither party has any objections to the mediator’s report, it will usually be adopted by the Court. If either party has objections, the court will try to resolve those at the initial hearing. If the disputes will need additional evidence or involve disputes over evidence, and cannot be resolved in the usual 20 minute law and motion or OSC calendar, the court will reschedule the hearing for short cause or long cause hearing, i.e., trial.

At JC Law offices, our lawyers are skillful and aggressive litigators---and parents themselves--and will be prepared to discuss all of your custody options with you and fight to get the best result for you and your children.

• Please Contact Us today for a consultation regarding your determining custody and visitation for your children.