Child Custody and Child Visitation Attorneys near San Juan Capistrano

Litigation and Experienced Child Custody Lawyers

Handling child custody and child visitation disputes requires a divorce lawyer to have a number of different and distinct lawyering skills. To be effective in child custody matters, a divorce lawyer must be both proficient in trial skills and knowledgeable about the details of custody law. A family law attorney must be intimately familiar with the statutes and case law related to child custody, child visitation and move away matters. It is critical that a divorce lawyer stay current and updated on the statutes and cases in that they change frequently and often without advanced notice. Changes may be significant or minor but any change may impact the outcome of a case dramatically. A divorce lawyer must also be conversant with the many issues regarding 730/3111 child custody evaluations and the psychological testing that is utilized in the child custody evaluation process.

Evidence, Presumptions and Privileges
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A family law attorney must be acutely aware of the way the judges in the Orange County Superior Court view custody issues. Judges are people and different people have different philosophies about child custody, move away issues, 730/3111 evaluations, parenting, etc. The various branches of the Superior Court in the State of California are not uniform in the area of child custody litigation. There are important and distinct differences between the counties that relate to how child custody and child visitation matters are determined.

Our divorce lawyers believe that it is in a client’s best interests to be represented by an attorney whose practice is located in the county where the child custody case is filed.

A divorce lawyer must also be experienced and proficient in litigation skills. It is essential for the divorce lawyer to be intimately familiar with the rules of evidence, burdens of proof and privileges that relate to child custody litigation in order to avoid potential disastrous results in trial. A child custody trial is a trial not a conversation with a judge. If a divorce lawyer is not skilled in the area of evidence, he/she may be unable to present important facts to the court. A skilled divorce lawyer may be able to prevent the other party from testifying as to the most important parts of the case.  In other words, the court may not ever hear the story that needs to be told. The divorce court will not have the opportunity to make an informed decision regarding child custody if it does not hear all of the facts.

It is a significant advantage to our clients that our divorce lawyers collaborate as a team on unique child custody and visitation matters. Our firm has more than 200 years of combined legal experience that are leveraged for the benefit of our clients. Without question, it would be rare, for a team of experienced divorce lawyers who limit their practice to Orange County family law matters not to create a better approach and a better strategic plan for child custody negotiations or litigation than would result from a one man band or it's equivalent.

A client should expect his/her divorce lawyer to be beyond candid and tell him/her the strengths and weaknesses of the case and the probable outcome at the first attorney-client meeting and at every step during the process, as facts unfold, so that a client has the opportunity to make informed and timely decisions about the case and the children. Our divorce lawyers are known for telling our clients the good, the bad and the ugly about child custody matters - early and often.

Potential Sequence of Procedural Events in Custody Litigation
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Child custody litigation is not the preferred way to resolve custody disputes.  The parties should take all actions reasonably appropriate to resolve child custody conflicts between themselves.  Litigation is expensive, time consuming, unpredictable and often results in long term conflict with the other party.  Continued conflict is never in the best interests of a child.  Before engaging in child custody litigation, one should carefully evaluate whether the level of emotional damage caused to a child due to the litigation is significantly less than the long term emotional damage that will occur to a child if the matter is not settled on compromised terms.  Before a party engages in child custody litigation, careful analysis should be given to the likelihood of prevailing.  The definition of a win should be carefully analyzed.  For example, is it a win if a party receives one additional custodial day every two weeks?  Significant time should be spent doing a cost benefit analysis.  Parties should only elect to fight custody, if he/she believes that there is no realistic alternative.

If a party elects to engage in child custody litigation, the selection of the divorce lawyer should be made very carefully.  The selection of the right divorce lawyer can often be the difference between a victory and a loss.

Child custody litigation may involve many different steps.  Temporary orders are made at the Request For Orders (RFO) stage.  Significant written discovery and depositions may be necessary.  Experts may be retained.  Permanent orders are made at the trial.

Family Law Interconnectivity Overview - Childen
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Custody Interconnectivity

There are many nuanced aspects in child custody matters.  A child custody case is not simply establishing a time-sharing schedule.  Child custody matters relate directly to child support and other issues.  For example, as the time share percentage of the payor goes down - child support goes up.  As income of the payor increases - child support increases.  The custody terms and child support level may impact decisions as to whether to retain the residence.

Custody Decision Tree
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Decision Making

There are many decisions that must be made relative to child custody matters.  A person should have all of the relevant facts before making decisions about the children.  The analysis should be made with a person's divorce lawyer, therapist and advisors.  Many decisions relative to custody impact other decisions related to child support, property division, etc.  Careful consideration should be given to personal preferences but also as to every day practicalities and the children's short term and long term best interests.

The Process

Legal Child Custody

Legal custody addresses which parent has the right and responsibility to make decisions regarding a child’s health, education and welfare. Parties are generally awarded joint legal custody.

Physical and Legal Custody
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In unique situations, a family law court may award legal custody to one parent in a designated area: education, extra-curricular activities or medical issues.  This type of an order may occur when the parties have a history of high conflict in one of these areas and have demonstrated an inability to co-parent.

Many family law courts are reluctant to make orders designating which school a child should attend.  They will often award custody to one party and that party will be authorized to make the decisions relative to educational issues.

Physical Child Custody

Physical custody determines where a child physically resides and the parenting time of each parent. It determines which parent has supervision rights relative to the child. The parties may be awarded joint physical custody or physical custody may be awarded to just one party.  Joint custody does not necessarily mean equal time sharing. A 70/30 time share could be labelled joint child custody. The parties may be awarded joint physical custody with one parent being designated as the primary caretaker or the primarily custodial parent.

Courts rarely split child custody between the parents. It is not generally believed that it is not in the children's best interests to live primarily with different parents.

Court Mandated Mediation

Before any contested child custody matter may be presented in court, the parties must attend court mandated mediation. If one of the parties fails to attend the mediation, the consequences may be sanctions and/or a delay in the proceedings.  In Orange County the mediation is confidential and the results of the mediation are not reported to the judge unless an agreement is reached.  The rules are different in other counties.

Divorce lawyers do not accompany the parties in the mediation sessions themselves.  However, a party is allowed to be accompanied by a support person while the mediation is taking place.

It is important to speak with a divorce lawyer prior to mediation in order to understand the process, the purpose, the goals and the terms of a reasonable custody arrangement.

It is critical for a party not to agree to a custodial plan in the mediator unless he/she is willing to be bound to the terms for years to come.  The mediator will report any agreement to the Judge assigned to the case.

If a party cannot attend the mediation, he/she should telephone the mediation office and reschedule the appointment. 

Child Custody Agreements

The parties may agree to resolve their differences relative to child custody and child visitation matters. If parties reach an agreement, they are not required to attend court mandated mediation. The courts will sign a child custody stipulation and do not question the parent's decision relative to these matters unless there are extraordinarily unique circumstances.  The family law court will not honor an agreement between the parties that designates a custody agreement as non-modifiable.  The court always retains jurisdiction to modify all aspects of custody orders.

In other words, the parties cannot prevent the family law court from making orders in the future that modify the terms of their agreement (IRMO Goodarzirad).

730/3111 Child Custody Evaluations

In some cases, the family law court may order the parties to participate in a 730/3111 child custody evaluation which is performed by a mental health professional who makes recommendations to the court relative to child custody and related matters.

The family law court is not required to allow parties to retain a 730/3111 expert to conduct a child custody evaluation.  A Judge may not grant a request that a custody evaluation be performed.

Often a 730/3111 child custody evaluation can delay the resolution of a case by six months or more.  These evaluations may also have a cost in the tens of thousands of dollars.

The child custody evaluator will interview the parties and the children and often may interview neighbors, friends, doctors, therapists, relatives, teachers and other individuals that have relevant information.

Typically, the evaluator will meet with the parties alone, the parties together, each party with the children and the parties and the children together.  The divorce lawyer does not accompany a party to the sessions.

The appointment of an evaluator can increase the attorneys fees on both sides, in that the evaluator may be deposed, a counter expert may be retained and deposed and depositions of the individuals interviewed by the therapist may occur.  The trial itself will be lengthier because of the additional witnesses and potentially expanded issues.

The Potential Team
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Child Custody Experts

The court may on its own motion, or at the request of a divorce lawyer, order a 730/5111 custody evaluation, a "child custody investigation," or appoint a family law attorney to represent a child (minor's counsel).  The court may also order parties to participate in therapy relative to child custody for a limited period of time.

Different experts fill different roles.  Frequently no experts are utilized in a custody matter and on occasion more than one expert is retained by each side of a case.  Whether to involve an expert in a child custody case is a critical decision that should be carefully evaluated by the divorce lawyer.  It is equally important to retain the right expert.  As with divorce lawyers, all experts are not created equal.

Parenting Plans/Time Share for Child Custody

The parties may agree to a parenting plan that is appropriate for their circumstances.  If they do not agree, the court will make orders relative to a parenting plan that the court belives is in the child's best interest.

Custody/Parenting Plan Models
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There are an endless variety of parenting plans.  The objective in designing the custodial schedule is to meet the needs of the child and the parties.  The practicalities of the child's schedule and the work schedules of both parties can make agreeing to a time share schedule problematic.  There is no one schedule that works for all families.  It is critical to understand that although each party's work schedule and needs may change, once an agreement is reached, it is not easy to modify that schedule.

Modification of Child Custody

Child custody orders may always be modified.  The parties cannot agree that they will not seek to modify or change the child custody arrangement in the future.  The family law court always retains jurisdiction to change its orders (IRMO Goodarzirad).

The family law court will only modify final child custody orders if there is a showing of a substantial change in circumstances between the date of the existing order and the current date (IRMO Montenegro).  If the order is not final, the family law court will base its decision relative to a modification based on the best interests of the child.

Examples of circumstances that may warrant a change in a child custody order include the following:

  • Child's preference;
  • Work schedule;
  • Move away (relocation);
  • Poor parenting/negligence;
  • Child abuse;
  • False allegations of abuse;
  • Domestic violence;
  • Interference with parent/child relationship (alienation);
  • Child's age;
  • School related issues.

In some situations the changing of the residential arrangements may not constitute a change in child custody.  In this situation, a showing of a substantial change of circumstances may not be required (IRMO Birnbaum).  Technically, a change in a visitation schedule may not be a change in custody and may not require a substantial change in circumstances.

Courts will not modify temporary child custody orders unless there is a showing of a substantial change of circumstances since the last order.  In fact, courts are reluctant to make changes in temporary custody orders under any circumstances unless a child's safety is involved.

Best Interest and Change of Circumstance Tests for Child Custody Determination

Best Interests of Child
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If the court is asked to make orders relative to child custody, it will make the determination based on the best interests of the child unless the hearing is the modification of a "final" order (IRMO Montenegro) and in that case, the test will be "substantial change of circumstances" (IRMO Burchard).

The court may consider many factors in determining "best interests" or "change of circumstances."  These two concepts are somewhat vague and subject to interpretation.  Often, the results of litigation in this area are not accurately predictable by divorce lawyers.  Different Judges may rule different ways on the same set of facts.  Family law courts have wide discretion in child custody litigation and reversing a family law court's child custody order on appeal is rare due to the discretion provided to them in this area.

Documented Domestic Violence

Documented domestic violence may have a significant impact on a court's determination of a child custody award.

Domestic Violence
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The family law courts are directed by statute to take domestic violence into consideration in making custody orders.  The consequences of committing domestic violence can be serious and long term.  It is critical to understand the definition of domestic violence.  Actions that constitute domestic violence are far more expansive than is often thought (stalking, blocking passage, taking possession of another's cell phone, implied threats, etc.).  Obviously, each instance is fact driven, must be taken in context and is dependent on the particular judicial officer.

Factors That May Influence Child Custody Orders

The court looks at many different factors relative to making its child custody orders including the factors set for the below:

  • Age and maturity of child;
  • Child’s preference;
  • Health, education, and welfare of the child;
  • Relocation of child’s residence;
  • Mental/emotional disorders of a parent or child;
  • Special needs of the child;
  • Cooperation or lack of cooperation between the parents;
  • Domestic Violence;
  • Work schedules of the parents;
  • Parenting skills;
  • Relationship between the child and each parent;
  • Educational needs of the child;
  • Cultural factors;
  • Criminal activity;
  • Parental support systems; and
  • Parent’s willingness to promote continuous and frequent contact with the other parent;
  • Drug use.

Move Away / Relocation

A parent with sole legal and sole physical custody does not have the absolute power to move away with a child (Brown and Yana).

"Move Away" Case
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If one parent makes the decision to attempt to relocate the child’s residence, the child custody order, will necessarily have to be modified in one way or another. A party will, of course, be able to relocate their own residence. The question will be whether that parent will be allowed to change the residence of the child. When a court makes the determination as to whether a parent may relocate a child’s residence, the court must assume that the parent will, in fact, move regardless of whether that parent is allowed to relocate the child’s residence. The court cannot make an order that provides for one custody order if the parent moves and a different custody order if the parent does not move.  In other words, the family law court must make an order that the child will live primarily with the moving parent or primarily with the non-moving parent.
If a custody order has been previously made designating one as parent as the primary custodial parent, The moving parent does not need to prove that the move is necessary (IRMO Burgess). The parent opposing the move must show that the move would be detrimental to the child (IRMO LaMusga). If that fact is proven by the non-moving parent, then the court must evaluate all of the relevant factors to determine whether a relocation is in a child’s best interests or whether a change of custody to the non-moving parent is in the child’s best interests. In other words, the court must make a determination as to which parent the child shall live with after the anticipated move. 
The court will look to a number of factors in making the determination relative to the move away including, but not limited to the following: extent of shared custody, willingness to place the children’s best interests first, reasons for the move, relationship of the child with each parent, distance of the move, age of the child, ability of the parents to cooperate and communicate, stability and continuity, relationship of the parents, and the child’s wishes.
Where parents have a working shared custody arrangement, the court must conduct a hearing to determine whether a relocation of the child’s residence is the child’s best interests.

If a child custody order has not been made or if the child custody order is not a ‘final’ order, the court will use the ‘best interests of the child’ test in making the decision on the relocation.

The parties cannot contract with each other to prevent the family law court from allowing one parent to move away with a child (IRMO Abrams).

The family law court cannot require a parent with lower financial resources to relocate (IRMO Fingert).

If you are in need of a Attorney that specializes in child custody and child visitation near San Juan Capistrano, contact Minyard Morris Family Law at (949) 724-1111 to set up a consultation with an experienced Attorney.


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