In my California family law practice, I receive numerous inquiries relating to child custody. Literally, tens of thousands of books can be written just about California child-custody issues. Child-custody inquiries are even higher than divorce inquiries because marriage is not a prerequisite to the creation of little bundles of joy. Because there are so many issues relating to child custody matters, I have decided to write a series of blog posts on this particular issue. This blog post provides an overview of issues the court will consider when making a determination on child custody issues.
What Issues Are Considered in Child Custody Matters?
- Legal Custody. relates to the decision-making powers of one or both parents. Decisions relating to, for instance, which schools the child will attend, what religion the child will practice, what medicines the child will take when sick and/or medical care the child will receive when ill.
- Physical Custody. This type of custody relates to who the primary custodial parent will be for the child. In certain instances, if the parents live very close to each other, the court will be more inclined to grant 50/50 physical custody; however, in a majority of instances, the court will grant sole legal custody to one of the parents, especially when the parties never married and the father has had little to no contact with the child.
- Visitation. Visitation is almost always also included when an individual files a motion for custody. The reason for this is because besides the court ascertaining who will have physical and legal custody of the minor child, the court and the parents will also need to ascertain what the visitation schedule will be between the parents for the minor child.
- Child Support. Even though a party filing for custody of a child may not ask for child support, the court will usually include this legal issue because it is naturally related to the issues of custody and visitation. Additionally, because both parents are responsible for supporting their child, it must be an issue to also be resolved at all custody hearings. Also, especially when there are prior child-support orders, a modification of physical custody or visitation will affect/change the child-support figures.
The Court’s legal Standard—“Best Interest of the Child”
More times than not, an individual parent (usually an unwed mother) will ask for sole legal and sole physical custody of the child in their court papers because it is in their best interest—and not in the best interests of the child. This is sometimes a mistake because the court can conclude that the parent is not making decisions that are in the child’s best interest. By law, the court must apply the “best interests of the child” standard. This means that the Court will make their decision, taking into the account the needs of the child, to include, considering the child’s emotional, medical and physical needs, the child’s welfare, their educational needs and any other factor affecting the child’s best interests.
- Facts. The court will look to actual facts, and not allegations. The difference between the two is you can prove a fact, you cannot prove a mere allegation. In other words, if one cannot prove a fact, it becomes a mere allegation.
- Evidence. The court will rely upon evidence whenever available as only evidence can prove a material fact. For instance, if mother wishes to convince the court that the child should not be left alone with father because he is an active alcoholic, it is important for mother to provide, as evidence, proof that father is an alcoholic. For example, providing copies of DUI police records, criminal records, dated photographs showing father drunk, etc., will help turn the allegation into a supported fact. Otherwise, the case becomes a case of “he said”/”she said.”
- Mother. The court also needs to determine whether Mother has any issues affecting her ability to care for the child while the child is in her care. Factors include age, health, addictions, and any other factor that prevents mother from properly caring for the minor child and/or putting the child at risk.
- Father. As with the mother, the court will also need to determine whether Father has any issues affecting his ability to care for the child while the child is in his care. Factors include, but are not limited to, age, health, addictions, employment, and any other factor that prevents father from caring for the minor child and/or putting the child at risk.
- The Minor Child. Lest we not forget—the minor child. While an obvious issue, it’s important to remember that all factors ultimately turn on what is in the child’s best interests. There is no black-and-white rule about custody. As each child is unique, each custody case is also unique. It is advisable that parents identify any and all unique issues of the minor and bring it to the court’s attention in order for the court to make a proper assessment of the child’s needs. For instance, does the child have ADD, have learning disabilities (e.g. dyslexia), dietary issues, and coping issues? All these, and many more, are factors for the court to consider.
Navigating the Family Law Courts
You may be surprised to learn that depending on how well a parent navigates the family law judicial court system determines the outcome of the custody case. No less than 78% of parents are self-represented in court. This means they have no attorney representing them. As a result, the end-result is usually tied to the level and degree of work and detail a parent puts into his or her case. In having reviewed probably 1000s of pro se filings in the past 12 years, I can confidently state that many times a person lost their custody case based solely on how poorly they prepared their paperwork and how poorly they followed court rules.
Visit my website for additional blog posts on Custody Matters. The next blog post, “What Do the California Courts Consider in Child Custody Matters—the ‘Best Interests of the Child’ Legal Standard.”
Please contact me if you wish to discuss ways I can provide full or limited scope legal services in your legal matter.
Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting their own research on their particular legal matter. Finally, keep in mind that if you are not a California resident and/or your matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.
© 2013 California Family Law and Divorce.com Copyright Protected. All Rights Reserved.