Custody of Children

The California Family Code states that children should have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship. In addition, it is the policy of the state to encourage parents to share the rights and responsibilities of child rearing. All court orders for child custody must be designed to further these goals.

This article deals with the process by which a court determines how the custody of a minor child is to be share by the parents. Submitting this issue to a court for its determination can be a very costly and emotionally draining experience. Fortunately, there are ways for parents to resolve their parenting issues without going to court, such as collaboration and mediation. Those topics are discussed in other pages of this website.

Child Custody Mediation and Parenting Programs

Except in the case of a true emergency, the Family Code specifically requires parents to participate in child custody mediation at the courthouse before the Judge can make any decisions concerning the custody of a minor child. These are usual single session mediations, which last between one and two hours. The mediator is not allowed to make any binding decisions concerning the children. Instead, the mediators function is to help the parents work out any differences they have regarding their children.

A child custody mediation is confidential, which means that what is said in the mediation session cannot be disclosed to the judge. There are two exceptions to this rule. County Superior Courts are permitted to enact rules that allow the mediator to make recommendations to the Court. In addition, if the mediator has reason to believe that a child is the victim of abuse, the mediator is required to report the abuse to the local Child Protective Services office.

Various counties also require parents to participate in parenting classes, such as the P.A.C.T. Program in Los Angeles County. Where such participation is ordered, the judge will also require each parent to submit written proof of completion prior before the court considers the question of child custody or visitation.

Specific Factors Considered

In determining the custodial arrangement, the court must be guided by what is in the best interests of the children. The law gives judges the "widest discretion" in deciding what is in the child's best interest. However, the Family Code specifically requires that the court to consider the following in making child custody determinations:

  • The health, safety, and welfare of the child
  • Whether there is any history of abuse by one parent against any child, the other parent or any other person who is seeking custody
  • The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent.
  • Various forms of custody are recognized by the California Family Code. The type of custody that is ordered depends upon what the judge believes is consistent with the best interests of the child.
  • Type of Custody
  • Definition
  • Joint custody
  • Joint physical custody and joint legal custody.
  • Joint legal custody
  • Both parents share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.
  • Joint physical custody
  • Each of the parents have significant periods of physical custody. Joint physical custody must be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.
  • Sole legal custody
  • One parent has the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.
  • Sole physical custody
  • A child resides with and be under the supervision of one parent, subject to the power of the court to order visitation.
  • In the vast majority of cases, courts award joint legal custody to the parents and primary physical custody to one of the parents. The other parent is awarded "secondary physical custody" or "visitation rights," consisting of alternating weekends, one evening per night and one-half of the children's school vacations. In some cases, the parents agree to "reasonable" secondary physical custody or visitation rights, which means that the parents agree on the times when the non-custodial parent will have the children.
  • Order of Preference in Awarding Custody
  • The California Family Code establishes an order of preference for the award of custody of a child. This order must be followed by a court, subject to the factors discussed above.
  1. 1. To both parents jointly or to either parent.
  2. 2. If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.
  3. 3. To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
  4. Before making an order granting custody to someone other than a parent, the court is required to find that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child.
  • Child Custody Evaluations
  • The court has the discretion to appoint a mental health professional to conduct a child custody evaluation. The evaluator's job is to make recommendations to assist the judge in making a decision concerning the custody of a minor child.
  • A child custody evaluation normally has the following components:
  • ● Interviews of the parents and the child.
  • ● Administration of psychological testing.
  • ● Communication with applicable public agencies where there are allegations of sexual abuse or domestic violence.
  • ● Communication with relevant professionals, such as medical care providers, teachers and social workers.
  • ● Preparation of a written evaluation report.
  • ● Testimony in court.
  • Child custody evaluations can be expensive, costing up to $10,000. The court will make a makes the determination of how the cost of the child custody evaluation is to be paid. This is usually based on a comparison of the parents' respective incomes.
  • Outpatient Counseling
  • The court has the power to make the parents and children participate in outpatient counseling with a licensed mental health professional or a substance abuse center. However, before the court makes a counseling order, it must find that the child custody/visitation dispute poses a substantial danger to the best interests of the child and that counseling is in the child's best interests. In determining if there is a threat to the child's welfare, the court is required to determine if there has been any domestic violence within the past five years. Any such counseling cannot last more than one year.
  • Appointment of Minor's Counsel
  • The Family Code authorizes the court to appoint an attorney to represent a minor child in a child custody/visitation matter. California Court Rule number 5,240 provides that, in determining if an attorney should be appointed for a minor child the court is required to consider the following:
  • 1) The issues of child custody and visitation are highly contested or protracted;
  • (2) The child is subjected to stress as a result of the dispute that might be alleviated by the intervention of counsel representing the child;
  • (3) Counsel representing the child would be likely to provide the court with relevant information not otherwise readily available or likely to be presented;
  • (4) The dispute involves allegations of physical, emotional, or sexual abuse or neglect of the child.
  • (5) It appears that one or both parents are incapable of providing a stable, safe, and secure environment;
  • (6) Counsel is available for appointment who is knowledgeable about the issues being raised regarding the child in the proceeding;
  • (7) The best interest of the child appears to require independent representation; and
  • (8) If there are two or more children, any child would require separate counsel to avoid a conflict of interest.
  • As is the case with the child custody evaluations, the Court will also decide how the cost of the minor's counsel is to be shared by the parents. Where the parents cannot afford to contribute to the cost of the minor's counsel, the Court can order the county to pay for these services.