Child Custody

Child custody matters are heard by the family law court without regard to whether the parties were ever married.  The focus of the family law court is making child custody orders that are in a child’s best interest.  The court's goal is to safeguard and promote a child’s health, education, and welfare.  The fact that the child’s parents were never married is not directly relevant.

Experienced Child Custody Lawyers

Properly handling child custody disputes requires a child custody attorney to have a number of different and distinct lawyering skills. To be effective in child custody matters, a child custody attorney must be both proficient in trial skills and must be knowledgeable about the nuances of child custody law. It is essential that a child custody attorney stay current and updated on the statutes and cases in that they change frequently and often without advanced notice. Changes may impact the outcome of a child custody case dramatically. A child custody attorney must also be conversant with the many issues regarding Evidence Code Section 730 child custody evaluations and the psychological testing that is utilized in the evaluation process.

Judges are people and different people have differing views about child custody, move away issues, Evidence Code Section 730 evaluations, parenting, etc. The various branches of the Superior Court in the State of California handle certain aspects of child custody litigation in different ways. There are distinct differences between the counties that relate to how child custody cases proceed

Our child custody attorneys believe that it is in a client’s best interests to be represented by a local child custody attorney. We do not believe it is generally in a client's best interest for an Orange County child custody attorney to accept a child custody case filed in Los Angeles or vice versa.

A child custody attorney must also be experienced and proficient in litigation skills. If a child custody attorney is not proficient in the area of evidence, he or she may be unable to present important facts to the family law court. A skilled child custody attorney may be able to prevent the other party from presenting the most important parts of the case.  In other words, a family law court may not ever hear the story that needs to be told if his or her attorney does not have the requisite trial and evidentiary skills. The family law court will not have the opportunity to make an informed decision if it does not hear all of the facts.

It is an advantage to our clients that our child custody attorneys collaborate as a team on unique child custody 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 child custody attorney who limit their practice to Orange County family law matters not to create a better strategic plan for a child custody matter than would result from a one-man shop.

Child custody litigation is not the best way to resolve custody disputes.  Continued conflict is never in the best interests of a child.  Before a party files a child custody matter, the likelihood of a win should be analyzed.  The definition of a win should be carefully defined.  For example, is it a win for a party to receive one additional custodial day every two weeks?  Parties should only opt to fight custody, if he or she believes that there is no realistic alternative.

If a party elects to litigate a child custody matter, the selection of the child custody attorney should be made very carefully.  The right attorney can be the difference between a win and a loss.

Child custody litigation involves different stages, but once paternity is established, they are identical regardless of whether the parties were ever married.  Temporary 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 child custody trial.

Legal Child Custody

Legal 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.

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 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.

Family law courts in Orange County are reluctant to make orders designating which school a child should attend.  They will often award legal 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 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.

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

Court Mandated Mediation

Before any contested child custody matter may be presented in the Orange County Superior Court, the parties must attend court mandated child custody mediation.  In Orange County, child custody mediation is confidential and the results of the child custody mediation are not reported to the family law court unless a child custody agreement has been reached.  The rules are different in other counties.  The rules are identical for married and unmarried couples.

Family law attorneys 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 critical for a party not to agree to a child custody plan in the child 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 court assigned to the case.

Child Custody Agreements

The parties may agree to resolve their differences relative to child custody matters after the mediation date is set and before the appointed time. If parties reach a child custody agreement, they are not required to attend court mandated child custody mediation. The Orange County family law courts will sign a child custody stipulation and do not question the parent's decisions relative to these matters except in the rarest of occasions. The family law court will not honor an agreement between the parties that designates a child custody agreement as being non-modifiable.  The family law court always retains jurisdiction to modify all aspects of child 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 child custody agreement.

Evidence Code Section 730 Child Custody Evaluations

In some cases, the family law court may order the parties, whether married or not, to participate in an Evidence Code Section 730 child custody evaluation which is performed by a mental health professional who makes recommendations to the family law court relative to child custody and related matters.

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.

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 child custody lawyer does not accompany a party to the sessions.

Child Custody Experts

The family law court may, on its own motion, or at the request of a child custody lawyer, order an Evidence Code Section 730 child custody evaluation, a "child custody investigation," or appoint a divorce attorney to represent a child (minor's counsel).  The family law 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, 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 child custody attorney.  It is critical to retain the right expert.  As with child custody 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.  There are an endless variety of child custody parenting plans.  The objective in designing the child custody schedule is to meet the needs of the child and the parties.  The practicalities of a child's schedule and the 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

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

Documented Domestic Violence

Documented domestic violence may have a significant impact in the determination of a child custody award.

Courts are directed to take domestic violence into consideration in making custody orders.  The consequences of committing domestic violence can be serious.  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.).