In intact families, both parents typically together make decisions about their child. When a family breaks up, the parents may disagree on what is best for the child. The dynamics can present child-rearing challenges. This summarizes a variety of typical custody and parenting concepts and issues.
Of course, every parent faces a different situation. Because the concepts often have more complex and nuanced applications in actual practice, please do not rely on this basic and general overview in relation to any particular issue or proceeding.
Legal and Physical Custody
California distinguishes between physical custody and legal custody. Physical custody is the responsibility of having a child live with a parent. The parent with whom a child is at any one time (the custodial parent) has the responsibility for making day-to-day decisions for them.
Those include, for instance, what the child eats and wears, with whom they play, and when they go to bed.
Legal custody is the right to make important long-term decisions affecting a child’s health, education and welfare.
Many variations of legal and physical custody are possible. The terminology is less important than how the arrangement works in practice.
Joint Physical Custody/Shared Custody
No statewide standard governs all joint custody arrangements. Some parents alternate days with their child and others may alternate weeks. Still others divide the child’s time unequally, but in the manner that meets the needs of each particular family. Parents who agree on custody can be more creative than courts when the parents cannot agree.
Joint legal custody, in which the parents share the right to make certain decisions for the child, may require decisions to be made together or by one parent in appropriate cases. Joint legal or joint physical custody is not necessarily appropriate in every case.
Allegations of Child Abuse and Domestic Violence
Allegations of child abuse, whether sexual, physical or psychological, are serious and emotional. Unfounded or false claims are harmful to a child and obscure issues. Judges and lawyers will try to protect a child from a parent who is an abuser, from a parent who allows someone else within the household to abuse the child, and from a parent who fabricates such claims. Domestic violence in a household, even if not directly asserted against a child, is still child abuse.
California requires disclosure of any information necessary to prevent a parent from harming a child. Professionals, such as physicians, social workers, psychotherapists, teachers, and members of the clergy, are required to reveal any information that indicates there will be a substantial risk of abuse to a child or reveal information necessary to prevent abuse. Each county has an agency, like Child Protective Services, tasked with taking and investigating claims of abuse. We are experienced in working closely with these organizations, which typically have
their own unique rules and processes.
When parents cannot agree on issues of custody and parental timeshare, California requires them to participate in mediation prior to potentially proceeding to a court hearing or trial. The general idea is that mediators can help parties settle some or all of their disputes.
Statistics show that parties are more likely to adhere to agreements that they reach themselves, as opposed to orders imposed on them by a judge. We would provide additional information and otherwise fully prepare you if your case might get to that point.
Sometimes a court will order an investigation or custody evaluation and recommendations by a mental health professional. The investigation may include a home visit and interviews with the parents, the child, their teachers, their daycare providers, relatives, neighbors, doctors, and anyone else who is significantly involved with the child. The investigator usually writes a report and makes recommendations to the judge. The recommendation can be helpful in reaching an agreement.
If an agreement is not reached and the custody or parenting dispute must be decided by the court, the judge will probably read the report. Those reports are typically influential.
California makes “custody evaluation” reports (as opposed to a mediator’s mere“ recommendations”) confidential and imposes severe sanctions on a parent or anyone else who discloses them. As one of our own high-profile cases helped cement that rule throughout the
state, we know it well and take it most seriously.
- Lawyer for the Child (“Minor’s Counsel”)
The court may appoint a lawyer to represent a child or represent a child’s best interests (which is the general, if vague, standard under California law for assessing and determining nearly every custody and parenting issue) in a custody dispute. Recently the Legislature tightened the rules governing such appointments, preventing “minor’s counsel” from acting like “junior judges.” Minor’s counsel can help in facilitating a child’s “voice” to the court. Their jobs include reporting both (1) the child’s pertinent desires and (2) counsel’s opinions concerning the child’s best interests – these are often divergent!
Minor’s counsel have duties that include meeting with the child, the parents, and the lawyers involved. They also gather other information that is important regarding the best interest and desires of the child. We would provide additional information and otherwise fully prepare you if the appointment of minor’s counsel might seem possible.
Experts in the realm of child custody and parenting include (1) consultants and (2) expert witnesses.
Even the best parents may find it useful to consult a child development expert toward meeting the challenges of parenting and co-parenting following a family break-up. We could provide excellent referrals to child development/counseling professionals who would be pleased to work with you, the other parent and your child toward achieving practical and non-litigated custody/parenting outcomes. You would not be the first parent to actually or potentially need that type of assistance, and so a whole class of these professionals would be available – and at much less cost than we lawyers. Having said that, we would still need to be kept in the loop — you would want our related legal advice, and for us to properly document any potential resolutions or other arrangements.
We and other attorneys sometimes bring expert witnesses, such as forensic psychologists, psychiatrists, counselors, or therapists, into court to testify as to their opinions regarding the best interest of a child. Once established as an expert in a particular area or field, that witness can provide the court with insight into the child, the effect of parents’ behavior on the child, the results of testing conducted, and family and parenting dynamics. Both parents may have their own respective expert witnesses — whose testimony may conflict. In appropriate cases, we might promote the retention of an expert witness; in others, we might be wary – just because someone might be an “expert” does not automatically make them all-knowing or right.
Sometimes a consulting expert can eventually also serve as an expert witness, but this requires careful consideration on a case-by-case basis.
The judge will listen to the witnesses and make decisions based on all the evidence, including expert witness testimony. These witnesses typically charge for their time and expertise and can sometimes be quite costly. When compared to the benefit of their testimony, that price can be a bargain. Every case is different, and we think hard about bringing to each one the appropriate level and mix of resources.
If, after investigation, negotiation, and mediation, parents are unable to settle custody and parenting issues, the disputes would be presented to the court for decision at a trial. There, witnesses are called to testify, documents are admitted in evidence and arguments are presented. Witnesses may include friends, family and others with knowledge of relevant facts. They may include experts who have been involved with the child or the family, such as counselors, teachers or health care providers.
After hearing testimony, witnesses, evidence, and arguments from both sides, the judge will make the custody and parenting decisions based on what the judge believes is in the best interest of the child. Until the trial is over, however, the parents may always reach an agreement and settle the matter prior to the judge making final rulings.
- Children as Witnesses:
Parents are often understandably concerned about the possibility of their child testifying in court. Some professionals advise against involving children in court proceedings because hearings and trial can be traumatic. On the other hand, experience teaches that some children can benefit from having their voices heard in this manner. Each situation and each child is different.
Laws govern whether a judge must or may hear a child’s testimony. Generally, the older and more mature a child, the more likely they might actually testify. If a child is to testify, a judge has the discretion to conduct the interview in either a formal or an informal manner. A single interview, however, should not determine the court’s decision; we often see judges make rulings contrary to a child’s stated desires.
You may want us to talk to your child. We are typically careful to avoid this, as it could make us substantive witnesses, thus creating conflicts of interest.
The behavior of parents before and after separation has a great influence on the emotional adjustments of their children. Like flight attendants on an airplane, parents who can project through words and actions that things are going to be “okay” can thereby lower children’s distress and anxiety. The following guidelines are general, and all of them might not always apply – for instance in domestic violence, child endangerment, or other extreme situations.
- Put the child’s welfare first.
- Maintain the adult role. Do not allow the child to be a decision-maker regarding the parental timeshare schedule, custody decisions, child support or other adult considerations. Just as a parent would not allow the child to decide whether to attend school or brush their teeth, keep the adult decisions to the adults and allow the child to be a child without the pressure of adult decisions.
- Never use the child as a weapon against the other parent.
- Do not allow others to use the child as a weapon against the other parent. Friends and family will want to provide support during the family law proceedings. They may be tempted to say bad things about the other parent in front of the child that could be detrimental to their relationship with the other parent going forward. It is important that the child does not hear bad things about their other parent from others.
- Be sure the child has ample time with the other parent. They need it.
- Do not introduce the child to a new romantic interest until the child has adjusted to separation and the new romantic relationship is stable. A parent might want to introduce a significant other to the other parent before introducing them to the child.
- Do not bring the child to court, unless instructed to do so by the court or us.
- Keep to the agreed or ordered parenting schedule.
- Give the other parent and the child as much notice as possible when scheduling conflicts might develop.
- Be considerate of the child and the other parent.
- Be flexible. Both parents may need to adjust the schedule from time to time.
- Giving of oneself is more important than giving material things. A judge may view feverish rounds of holiday-type activities during custodial periods or lavish gifts as inappropriate efforts to purchase affection. Additionally, the mere fact that the child likely has two separate households could double the amount of gifting during birthdays and holidays. If circumstances allow, coordinate and discuss the appropriate amount of combined gifting with the other parent to ensure the child does not receive more than appropriate.
- Do not use the child as a spy to report about the other parent. Do not interrogate the child about what they did when with the other parent.
- Do not use the child as a courier to deliver messages, money, or information.
- Try to agree on decisions about the child — especially matters of discipline — so that one parent is not undermining the other’s efforts.
- Avoid arguments or confrontations with the other parent while dropping-off or picking- up the child, or at any other time when they are present.
- Do not listen in on the child’s telephone calls with the other parent.
- Maintain composure and try to keep a sense of humor. Remember that a parent’s attitude and conduct directly affects the child’s behavior.
- Assure the child they are not to blame for disagreements with the other parent.
- Do not share details of the reasons for the family breakup with the child. Assure the child that it was an adult decision that had nothing to do with them.
- Assure the child they are not being rejected or abandoned by either parent.
- Do not criticize the other parent in front of the child. The child is half of one parent and half of the other, and they inherently know it. They need to respect both of their parents. Any criticism of the other parent affects that half of the child and causes them to feel bad about themselves.
- Do not badmouth the other parent to the parents of the child’s friends, teachers, or others.
- Tell the child to have a good time when they go to the other parent’s home.
- Do not let guilt feelings about the family breakdown interfere with the discipline of the child. Parents must be ready to say “no” when necessary.
- Do not talk negatively to friends/relatives about the other parent or the family law proceedings while the child is in earshot. Children hear more than we realize.
- Attempt regular communication with the other parent. Parents who never speak to each other give children the ability to play parents against each other and get away with bad behaviors that cannot happen if parents are regularly communication.
- Any parent is only human. The “perfect parent” is non-existent. When a parent makes a mistake, they can acknowledge it and try to be a better parent.
Be the best consistent parent possible for the child. They will feel safe and know they can count on that stability.
Frequently Asked Questions; Answers
- I once had a brief affair and the other parent says I will lose our child.Arguable “misconduct” or “fault” that does not involve the child is seldom significant in determining child custody.
I have had some problems in the past with depression. I once saw a psychiatrist and now the other parent says I’m crazy and will lose custody of our child. Is that right?
The fact that a parent sought help for mental health concerns probably would not affect custody if the parent acts in a manner that is in the best interest of the child. Contrarily, courts usually see the ability to recognize the need to get professional help as a good sign of maturity and responsible action; both are desirable characteristics in a custodial parent. We perceive a professional trend against “labeling” parents with mental health diagnoses. More and more parenting professionals and courts focus instead on parenting behavior.
- I am a good father/mother. Are judges prejudiced against men or women?
Both parents are equally entitled to custody of children, and children are entitled to be parented by both mothers and fathers. California prohibits courts from considering gender as a factor in determining custody. Every judge is different, but we perceive a trend toward awarding substantially equal custodial time to each parent unless one can make a convincing argument to the contrary. The judge will consider the facts in each case, including which parent may provide the best environment for children regarding consistency as to their needs, schedule, environment, etc. to determine their best interest.
- I want to move out of the area and take our child with me. Will I be able to?
Whether a parent is allowed to move away with a child depends on a complex set of legal considerations and the facts of a case. A parent cannot make such a move absent a stipulation by the other parent or orders of the court. A move may be legally difficult because courts do not want one parent to take a child away from an otherwise active parent. As a child ages, it also becomes a hardship for them to experience missing time with activities/friends when they travel to spend time with the other parent.
If a proposed move might be opposed, the resulting litigation would typically be difficult and expensive.
We will closely work with you toward gathering the relevant facts and documents toward analyzing and then advocating your positions consistent with your child’s best interests. In the meantime, though, we strongly advise you and others under your supervision and control to refrain from corporeal punishment/spanking of your child and to ensure that all prescription and non-prescription drugs and medications, and to lock away weapons. While respecting, and without presently debating, parental rights and the appropriate scope of parental discretion in child-rearing, suffice it to say that both parents will be under a microscope in any custody/parenting case and these general guidelines can, at the least, help you avoid some common and costly areas of contention.