Child Custody

The courts have wide discretion in making child custody orders and thus the results are not predictable with any level of certainty. The courts are guided by a child’s best interest in making an initial custody order.  Courts make orders relative to physical custody and legal custody. The parties are encouraged to reach agreements between themselves without court intervention. Court mediation is required before a hearing or trial is allowed to proceed.

Physical and Legal Custody

Custody orders are divided into two types: physical custody and legal custody.

Physical custody addresses the time share that each parent is awarded with a child. A physical custody order generally details exactly when a child will be in the physical custody of each parent. This time may be referred to as  "parenting time," “visitation” or “periods of physical custody.” The parties may agree to an order that defines the custodial time of the non-custodial parent as “reasonable.” Non-specific (reasonable) orders often lead to future conflict or litigation. Physical custody orders may be labeled “sole physical custody” or “joint physical custody.” The label “sole” or “joint” does not determine the percentage of timesharing.  An 80%/20% timeshare could be a “joint physical custody.” A “sole physical custody” order generally means that one parent has significantly more custodial time than the other parent.

Legal custody addresses a parent’s authority to make decisions relative to a child’s health, education and welfare. A parent with “sole legal custody” has the right to make decisions in these areas. “Joint legal custody” is the term used when both parents have the right and responsibility to make decisions relating to these areas. Parents are generally awarded “joint legal custody.” In rare situations, one parent is awarded the exclusive right to make decisions in some or all these areas.

Physical Custody = Time Sharing
Legal Custody = Decision Making
Potential Sequence of Procedural Events in Custody Litigation

The vast majority of custody matters are not litigated and never go to court. Parties generally settle their conflicts before a hearing occurs.

This map is an example of a potential sequence of events that may occur in custody litigation. Even if a matter is litigated, there is a high likelihood that there will not be a Family Code § 3111 / Evidence Code § 730 custody evaluation. Even where an evaluation is completed, there is a high likelihood that depositions will  not be taken and that the case will be settled.

Infographic - Potential Sequence of Procedural Events in Custody Litigation
  1. A Request for Order (RFO) is a pleading that is filed with the court that places before the court specific requests regarding custody and other related issues. RFOs may also address other non-custodial issues.
  2. Before a contested custody or visitation issue can be presented to the court the parties are required to meet with a court mediator. The mediator attempts to assist the parties in coming to an agreement. If no agreement is reached, the mediator does not report to the court and does not make a recommendation to the court in Orange County.
  3. The divorce court may make temporary orders regarding custody. These orders generally remain in place until a final judgment is entered.
  4. A party may request the appointment of a mental health professional (Pursuant to Family Code § 3111 / Evidence § 730) to make custody recommendations to the divorce court.  The court may also appoint an attorney to represent a child or order an emergency investigation through the Probation Department.
  5. The court may or may not grant a request that a Family Code § 3111 / Evidence § 730 evaluation expert be appointed. The court has wide discretion with this issue.
  6. A party may retain his/her own mental health expert (Under Evidence Code Section 733) to attempt to impeach the methodology, protocol, foundation and/or analysis of the Family Code § 3111 / Evidence § 730 expert.
  7. The Family Code § 3111 / Evidence § 730 evaluation process may take between four and nine months with costs for the expert ranging from $5,000 on the low end to tens of thousands on the high end.
  8. The parties may be examined in depositions relative to issues related to custody.
  9. Depositions may be taken of third parties (called collaterals) who are interviewed by the Family Code § 3111 / Evidence § 730 expert.
  10. If the matter is not settled, a party may elect to depose the Family Code § 3111 / Evidence § 730 expert relative to the report, its recommendations and its findings.
  11. A voluntary settlement conference may be set with a retired judicial officer or a private practice lawyer mediator.
  12. Trials are frequently continued more than once, may take multiple days to complete and the trial may be spread over several weeks or even months.
Best Interests of Child

California family law courts consider innumerable factors in making a custody determination.  In the initial custody trial, courts are guided by a child’s best interest.

Infographic - Best Interests of Child

Wide Discretion

Courts have wide discretion in weighing these factors. Custody matters are very fact driven and thus it is rarely possible to predict what the outcome of custody litigation will be with any level of certainty.

Custody/Parenting Plan Models

Parents often modify these models or create their own models. The age of a child may play a significant role in the development of the particular parenting plan.

Family law courts have wide discretion in fashioning parenting plans. The objective of selecting a particular custody/parenting plan is to meet the specific needs of the family and serve a child’s best interest.

Infographic - Custody/Parenting Plan Models
Infographic - Custody/Parenting Plan Models
Infographic - Custody/Parenting Plan Models
Infographic - Custody/Parenting Plan Models
Infographic - Custody/Parenting Plan Models

Modification of Child Custody Orders

Child custody orders are always modifiable. If the existing order is a "final" order, the child custody order may be modified only if there is a showing of a substantial change of circumstances. If the existing order is not a "final" order, the court will look to the best interests of a child in deciding whether to modify the child custody order. If the request is simply to alter the residential arrangements that exist in a joint physical custody order, the family law court may not characterize the request as a custody modification and a change of circumstances may not be required.

Modification of Child Custody

Infographic - Modification of Child Custody

Move Away Test

Infographic - Move Away Test
"Move Away" Case

Relocation of a Child's Residence

One of the most contentious areas of child custody litigation is litigation that involves one party's attempt to relocate a child's residence, which is referred to as a 'move away' case. It must be noted that the court does not have the jurisdiction to stop a parent from moving, but it may determine whether the moving parent may take the child with him/her or order that the child shall remain with the non-moving parent.

If the move is litigated before or during a dissolution trial, the court will look to the best interest of the child when making its order. If the move is litigated after a final permanent custody order has been made, the court will use an alternate standard which is referred to as the ‘detriment’ test. 

This infographic illustrates how the court analyzes a request to relocate when the move is requested after a final permanent custody order has been issued. (IRMO Burgess & IRMO LaMusga).

Infographic -
Prior to Entry of Judgment = Best Interest Test
After Entry of Judgment = Detriment Test