California’s court process regarding child custody litigation can be very expensive, as well as lengthy. More importantly, contested child custody proceedings are hardly ever in the child’s best interest. Since the California Superior Court prefers to have custody and visitation issues decided outside of the courtroom and in a non-adversary manner, the parent’s family law attorney should encourage their clients to try and settle child custody and child visitation issues outside of the court. With the assistance of an experienced Fresno family law lawyer, an agreement is often possible. If there is no settlement outside of court, the parties must then also pursue mediation before the issue(s) may proceed to a hearing. The mediation recommendation is given much weight in the decision making process of the court.
If no child custody and visitation settlement can be reached in mediation, many individuals with this type of family law matter want to evaluate their chance of success in court during a hearing on child custody and visitation. In trying to determine if they will win at their hearing, parties should be advised by their family law lawyer about the basic parameters which will guide the court’s decision. These variables include the following:
Maintenance of status quo. Usually courts are reluctant to upset the custodial arrangement which is in place prior to the hearing, especially with young children. Unless the other party can show there is a detriment to the children, the court will favor maintenance of the status quo. For example, if the children have been living with the mom since separation and prior to the hearing, the court will most often keep this arrangement intact.
Willingness to accommodate other parent’s rights. A parent who insists on keeping the children away from the other parent is likely to face an uphill battle. Unless the children’s health, safety and welfare would be undermined, custody orders must be made to assure the children frequent and continuing contact with both parents. Thus, except in cases of threatened child endangerment, a custody fight should not be pursued with the intent to thwart the children’s relationship with the other parent.
Child’s preferences. Clients should also consider their children’s wishes, particularly if they are teenagers. The court is likely to do the same and may give their preferences great weight.
Domestic violence factor. A domestic violence perpetrator is unlikely to find much sympathy with the judge in trying to get a custody award. The law presumes such a parent is not suitable for a sole or joint custody award.
Immediate risk of harm or removal prerequisite to ex parte custody/visitation orders. Custody and visitation orders cannot be made or modified on an ex parte basis absent a showing of immediate harm to the child or immediate risk the child will be removed from the state. Immediate harm to the child includes, but is not limited to, situations where (a) a parent has committed acts of domestic violence and the court determines those acts are of recent origin or part of a demonstrated and continuing pattern of acts of domestic violence, or (b) there has been sexual abuse of the child and the court determines the acts of sexual abuse are of recent origin or part of a demonstrated and continuing pattern of acts of sexual abuse. Failure to provide adequate child supervision justifies ex parte order changing custody. However, whether there is a sufficient showing of immediate harm is really a judgment call that is subject to vastly different judicial interpretations. Generally, ex parte custody orders are extremely difficult to get.
The court’s bottom line in determining custody is in maintaining the child’s best interest, and that determination is left mostly to the trial court’s discretion. The law allows courts to choose a parenting plan that is in the child’s best interest; and the trial court’s decision will be upheld on appeal so long as it reasonably can be concluded that the order is in the child’s best interest.
An experienced Fresno family law attorney can give you more specific details on your child custody issues. For more information, grab a Free copy of California Divorce Guide: What You Should Know Before You Call an Attorney.