Child Custody and Child Visitation

Experienced Orange County Child Custody Lawyers

Handling child custody and child visitation disputes requires that 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 nuances of child custody law. A divorce lawyer 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 child custody case dramatically. An Orange County divorce lawyer must also be conversant with the many issues regarding Evidence Code Section 730/Family Code Section 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 divorce lawyer must be acutely aware of the way the judges view child custody issues. Judges are people and different people have different philosophies about child custody, move away issues, Evidence Code Section 730/Family Code Section 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 Orange County divorce lawyers believe that it is in a client’s best interests to be represented by a divorce lawyer whose practice is located in the county where the child custody case is filed.  In other words, we do not believe it is in a client's best interest for an Orange County divorce lawyer to accept a child custody case filed in Los Angeles or vice versa.

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 or she may be unable to present important facts to the divorce 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, a divorce 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 Orange County divorce lawyers collaborate as a team on unique child custody and visitation matters. Our firm has almost 200 years of combined Orange County legal experience that are leveraged for the benefit of our clients.  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 its equivalent.

A client should expect his or her divorce lawyer to be beyond candid and explain to him or her the strengths and weaknesses of the case and the probable outcome at the first attorney-client meeting and at every stage during the process, as new facts unfold.  A client should have the opportunity to make informed and timely decisions about his or her case and the children. Our Orange County 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 Child Custody Litigation
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Child custody litigation is not the preferred way to resolve child 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 and oneself in litigation is significantly less than the emotional damage resulting from a compromised settlement.  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 for a party to receive 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 or she believes that there is no realistic alternative.

If a party elects to engage in child custody litigation, the selection of the Orange County 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 stages.  Temporary child custody orders are made at the Request For Orders (RFO) stage.  Significant written discovery and depositions may be necessary and experts may be retained before permanent orders are made at the divorce 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 orders relate directly to the amount of child support ordered and other related issues.  For example, as the time share percentage of the payor decreases - child support may increase.  As income of the payor increases - child support increases.  The terms of a child custody order and the amount of child support may impact decisions as to whether to retain the family 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 child 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 child custody addresses the right and responsibility to make decisions regarding a child’s health, education, and welfare. Parties are generally awarded joint legal child custody in Orange County Superior Court.

Physical and Legal Custody
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In unique situations, a divorce court may award legal child custody to one parent in a designated area: education, extra-curricular activities, or medical issues.  This type of child custody 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.

Divorce courts in Orange County are reluctant to make orders designating which school a child should attend.  They will often award legal child custody to one parent and authorize that parent to make the decisions relative to the school selection.

Physical Child Custody

Physical child custody addresses where a child physically resides and the parenting time of each parent. A physical child custody order determines which parent has supervision rights relative to the child. The parties may be awarded joint physical child custody or physical child custody may be awarded to just one party.  Joint physical child 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 child custody with one parent being designated as the primary caretaker or the primarily custodial parent.

Divorce courts in Orange County rarely split sibling's between the parents. It is not generally believed that it is in the siblings best interests to live primarily with different parents.

Court Mandated Child Custody Mediation

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

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

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

It is critical for a party not to agree to a child custodial plan in the custody mediation unless he or she is willing to be bound to the terms for years to come.  The child custody mediator will report any agreement to the Orange County family law Judge assigned to the case.

If a party cannot attend the mediation, he or she must 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 child custody mediation. The Orange County divorce court will sign a child custody stipulation and do not question the parent's decision relative to these matters except in the rarest of occasions. The divorce court will not honor an agreement between the parties that designates a child custody agreement as non-modifiable.  The divorce court always retains jurisdiction to modify all aspects of child custody orders.

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

The parties cannot validly stipulate to deprive the court of jurisdiction to allow one party to relocate with a child (IRMO Abrams)

Evidence Code Section 730 / Family Law Code Section 3111 Child Custody Evaluations

In some cases, the divorce court may order the parties to participate in an Evidence Code Section 730/Family Law Code Section 3111 child custody evaluation which is performed by a mental health professional who makes recommendations to the divorce court relative to child custody and related matters.

The divorce court is not required to allow parties to retain an Evidence Code Section 730/Family Law Code Section 3111 expert to conduct a child custody evaluation.  Some Orange County divorce courts do not frequently grant requests for a child custody evaluation for a variety of reasons.

Often an Evidence Code Section 730/Family Law Code Section 3111 child custody evaluation can delay the resolution of a case by six months or more.  Child custody 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 or other individuals that have relevant information.  The evaluator may visit the home of each parent to perform a "home visit."

Typically, the child custody 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 client in the sessions.

The appointment of a child custody evaluator can increase the attorneys fees on both sides, in that the child custody evaluator may be deposed, a counter expert may be retained and deposed and depositions of the individuals interviewed by the child custody evaluator may occur.  The child custody 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 divorce court may, on its own motion, or at the request of a divorce lawyer, order an Evidence Code Section 730/Family Code Section 5111 child custody evaluation, a "child custody investigation," or appoint an Orange County divorce lawyer to represent a child (minor's counsel).  The divorce court may also order parties to participate in therapy relative to child custody for a limited period of time.

Frequently, child custody matters proceed without any experts 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 with the divorce lawyer.  It is critical to retain the right expert in that, as with divorce lawyers, all experts are not created equal.

Parenting Plans/Time Share for Child Custody

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

Custody/Parenting Plan Models
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There are an endless variety of child custody parenting plans.  The objective in designing the custodial schedule is to meet the needs of the child and the parties.  The practicalities of a child's schedule and work schedules of both parties can make creating a mutually acceptable child custody 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.

Factors That May Influence Child Custody Orders

Divorce courts look 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
  • Parent’s willingness to promote continuous and frequent contact with the other parent
  • Drug use

A child custody order may not be made based on the relative economic circumstances of the parents (Burchard v. Gray).

Documented Domestic Violence

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

Domestic Violence
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Divorce courts are directed by statute to take domestic violence into consideration in making child custody orders.  An award of joint legal child custody or physical child custody to a parent who has been found to have commited domestic violence in the last five years is detrimental to the best interest of a child (Christina L. v. Chauncey B., IRMO Fajota, and Celia S. v. Hugo H.).

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 divorce court.

Child custody, visitation and child support orders survive the end of or termination of a DVPA protective order (Moore v. Bedard).

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 divorce court always retains jurisdiction to change its orders (IRMO Goodarzirad).

Generally, the divorce 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 (Montenegro v. Diaz).  If the order is not final, the divorce court will base its decision relative to a modification on the best interests of the child.  The parties cannot bind the family law court to follow a specific standard of review at future custody hearings.

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

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

In some situations, the changing of the residential arrangements (timeshare) 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).  Some minor changes in a schedule may not be a change in custody and may not require a substantial change in circumstances.

Divorce 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, divorce courts are reluctant to make changes in temporary custody orders under any circumstances unless a child's safety is involved.  Divorce courts seek to have only one child custody trial.

Best Interest and Change of Circumstance Tests for Child Custody Determination

Best Interests of Child
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If the divorce 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 (Montenegro v. Diaz) and in that case, the test will be whether there has been a "substantial change of circumstances" (IRMO Burchard).

The divorce 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.  Divorce courts have wide discretion in child custody litigation and reversing a divorce court's child custody order on appeal is rare due to the high level of discretion given to them.

The parties may not contract with each other or stipulate as to a particular standard of review relative to future child custody orders.  The divorce court will not be bound by such stipulations.  In Marriage of Cohen, the divorce court made this point relative to child support of the same rule would apply to child custody for public policy reasons (IRMO Cohen).

Move Away / Relocation

A parent with sole legal and sole physical child 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 his or her own residence. The question will be whether that parent will be allowed to change the residence of the child. When a divorce court makes the determination as to whether a parent may relocate a child’s residence, the divorce court must assume that the parent will in fact move, regardless of whether the court allows the party to relocate the child’s residence. A divorce court cannot make an order that provides for one child custody order if the parent who proposes to move in fact moves and a different child custody order if the parent does not move.  In other words, a divorce court must make an order that the child will live primarily with the moving parent or primarily with the non-moving parent.

There is a very high burden on a non-custodial parent who is attempting to modify custody and relocate a child's residence (Jane J. v. Superior Court).

Generally, a hearing is required for a court to rule on a move away case due to the serious nature of the issue (IRMO Seagondollar).
If a child custody order has been previously made designating one parent as the primary custodial parent, the moving parent does not need to prove that the move is necessary (IRMO Burgess). A 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 a divorce 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 child custody to the non-moving parent is in the child’s best interests. In other words, a divorce court must make a determination as to which parent the child shall live with after the anticipated move. 
A divorce 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 child custody arrangement, a divorce court must conduct a hearing to determine whether a relocation of the child’s residence is the child’s best interests (IRMO Cohen).

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

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

A divorce court cannot require a parent with lower financial resources to relocate (IRMO Fingert) to live near the child.


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