Child Custody & Visitation

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.

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. But the law specifically requires that the court consider:

· 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.

Types of Child Custody:

Legal Custody: awards a parent or both parents the right to make legal decisions for the child regarding education, health care, religion, and his or her general welfare.

Sole Legal Custody: when only one parent holds the right to make legal decisions for the child regarding education, health care, religion, and his or her general welfare.

Joint Legal Custody: when both parents hold the right to make legal decisions for the child regarding education, health care, religion, and his or her general welfare, without either parent having superior rights. The most common form of joint legal custody designates one parent as having primary residential (i.e., physical) custody.

Currently, in most states, the courts will favor joint legal custody in situations where the parents have the ability to cooperate with one another in terms of making decisions that are in "the best interest of the child." Many divorcing parents do work very hard towards achieving this goal. Joint custody is definitely not for everyone and can only come about as a result of rational decision-making process focused on the past roles and future expectations of the parents.

Physical Custody: defines and declares the child's residency.

Sole or Primary Physical Custody: when the child lives with one parent and the other has specific visitation rights.

Joint Physical Custody: when a child is able to reside with each parent for a substantial amount of time during the course of a calendar year. The arrangement does not have to be split 50-50, but it does require some consistent plan or schedule.

Modification of Child Custody/Visitation Orders:

Child custody and visitation orders are generally modifiable whenever the court finds a modification is "necessary or proper" and in the child's best interests. [Ca Family Code §3022]. After a final determination of custody has been made, the parent seeking a modification must show a "significant change of circumstances" that would support such a modification.

Child's Preference:

There is no specific age when a child can decide where he/she will live; it depends on the age and maturity of the child and the circumstances of the case. The court can consider the child's preference if it finds that the child is old enough and sufficiently mature to reason so that the child can form an intelligent preference as to custody.

How the child's preference is presented is left to the discretion of the court. The Family Code gives the court control over the examination of a child witness so as to protect the best interests of the child. The court can preclude the calling of the child as a witness where the best interests of the child dictate and may provide alternative means of obtaining information regarding the child's preferences. For example, the court can appoint a mental health professional to conduct an evaluation of the child and report back to the court.

Child Custody Mediation:

The law provides that before a judge can make any decisions concerning child custody or visitation, the parties and children must first participate in a counseling session with a court mediator. This is not actually a court, but a licensed marriage and family counselor whose only job is to help parents work out agreements concerning custody and visitation without involving the judge.

In Los Angeles County, the Conciliation Court conducts the meditation, while in Ventura County it is conducted by Family Court Services. The procedure in both counties, however, is similar in many respects. The parents meet with a counselor to discuss whatever disagreements they have concerning the children.

The counselor usually begins by meeting with both parents together. After this initial meeting, one of the parents is asked to leave the room so that the counselor can talk to the one parent separately. When this individual meeting is over, the counselor then talks separately with the other parent. There may be additional separate and joint meetings, and the counselor might want to talk to the children.

If the parents are able to agree on some or all of the disputed child custody and visitation issues, the counselor will prepare a written agreement, which the parents are asked to sign. This agreement is then forwarded to the judge, who confirms it as a court order.

If the parents are unable to agree, then, in Ventura County the mediator will make recommendations to the court regarding the parents' custody arrangement, while in Los Angeles County the conciliation court officer does not make recommendations to the court.

Frequently Asked Questions

CAN I GET JOINT CUSTODY OF MY CHILDREN?

California has a "joint custody" law that encourages judges to award joint "legal custody" to parents. There is a presumption, affecting the burden of proof that joint custody is in the best interest of a minor child where the parents have agreed to joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child. This means that both parents have a right to make decisions concerning their children, such as education, medical treatment and religious training.

WHAT IS THE DIFFERENCE BETWEEN LEGAL CUSTODY AND PHYSICAL CUSTODY?

"Joint custody" means joint physical custody and joint legal custody

"Joint legal custody" means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.

"Joint physical custody" means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020of the Family Code.

"Sole legal custody" means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.

"Sole physical custody" means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.

WHAT IS THE EFFECT OF A FINDING OF DOMESTIC VIOLENCE ON CUSTODY ORDERS?

Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child. This presumption may only be rebutted by a preponderance of the evidence.

ARE CUSTODY ORDERS ISSUED OR MODIFIED EX PARTE WITHOUT A NOTICED CUSTODY HEARING?

Custody orders should not be issued or modified ex parte absent showing of immediate harm to child, such as acts of domestic violence. STATUTE PROVIDES: "The court shall refrain from making an order granting or modifying a custody order on an ex parte basis unless there has been a showing of immediate harm to the child or immediate risk that the child will be removed from the State of California. "Immediate harm to the child" includes having a parent who has committed acts of domestic violence, where the court determines that the acts of domestic violence are of recent origin or are a part of a demonstrated and continuing pattern of acts of domestic violence.” (Family Code §3064)

IN MAKING A CUSTODY OR VISITATION AWARD, WILL THE COURT CONSIDER ABSENCE OR RELOCATION FROM THE FAMILY RESIDENCE AS A FACTOR?

STATUTE PROVIDES:

"(a) If a party is absent or relocates from the family residence, the court shall not consider the absence or relocation as a factor in determining custody or visitation in either of the following circumstances:

(1) The absence or relocation is of short duration and the court finds that, during the period of absence or relocation, the party has demonstrated an interest in maintaining custody or visitation, the party maintains, or makes reasonable efforts to maintain, regular contact with the child, and the party’s behavior demonstrates no intent to abandon the child.

(2) The party is absent or relocates because of an act or acts of actual or threatened domestic or family violence by the other party.

(b) The court may consider attempts by one party to interfere with the other party’s regular contact with the child in determining if the party has satisfied the requirements of subdivision (a).

(1) A party against whom a protective or restraining order has been issued excluding the party from the dwelling of the other party or the child, or otherwise enjoining the party from assault or harassment against the other party or the child....

(2) A party who abandons a child as provided in [Family Code §7822]."

(Family Code §3046.)

IN MAKING A CUSTODY AWARD, SHOULD THE COURT CONSIDER HABITUAL OR CONTINUAL ILLEGAL USE OF CONTROLLED SUBSTANCES OR ALCOHOL BY EITHER PARENT?

STATUTE PROVIDES:

"In making a determination of the best interest of the child in a proceeding described in [Family Code §3021], the court shall, among any other factors it finds relevant, consider all of the following...:

... (d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services...” (Family Code §3011 (d).)

CAN A FAMILY LAW COURT ORDER DRUG OR ALCOHOLD TESTING OF A PARENT BASED ON THE ALLEGATIONS OF THE OTHER PARENT?

The most recent case in this area said no. In Wainwright v. Super. Ct. (Sinkler) (2000) 84 Cal.App.4th 262, 100 Cal.Rptr.2d 749 – the Court said that Family Code §3011 (d), devoid of any substantive or procedural safeguards, does not authorize court-ordered drug testing. It said that a family court's power to require 'independent corroboration' before considering allegations of a parent's drug or alcohol abuse does not authorize the court to order drug testing."

The Wainwright Court said that interpreting Family Code section 3011 (d) to permit drug testing in child custody disputes would create serious constitutional difficulties given the provision's lack of any substantive or procedural guidelines. Provision would permit parental drug testing upon a bare allegation of drug use and without any statutory limitations on the type of test (blood, urine or hair), the manner of administering the test, or the disclosure of test results. Section 3011 (d) does not mandate confidentiality, nor any other procedures to achieve a proper balance between a parent's privacy interests, the degree of intrusion, and the state's interest in protecting child welfare.

SHALL A COURT CONSIDER THE PREFERENCE OF A CHILD IN MAKING A CUSTODY ORDER UNDER CERTAIN CIRCUMSTANCES?

STATUTE PROVIDES:

"(a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.

(b) In addition to the requirements of [Evidence Code §765 (Special procedures for interrogation of witnesses under age of 14)], the court shall control the examination of the child witness so as to protect the best interests of the child. The court may preclude the calling of the child as a witness where the best interests of the child so dictates and may provide alternative means of obtaining information regarding the child's preferences.” (Family Code §3042.)

However, the wishes of child are not conclusive on the issue of best interests. This is the holding in Adoption of Michael D. (1989) 209 Cal.App.3d 122, 256 Cal.Rptr. 884.

In discussing the issue of maturity and custodial preference of children, the court commented that "[m]aturity is not measured by chronological age. The mediator gave her opinion that both children were very mature. The court had an opportunity to personally observe the children.... [I]t is peculiarly the function of the trial judge to determine what consideration is to be given, if any, to [the children's] expressed preference as to custody." (Id. at p. 1103.) "To the extent the court decides consideration should be given to preferences of children as to custody, such preferences are entitled to greater consideration in a modification proceeding, as here, than would be appropriate in an initial custody determination. In the latter circumstance there will usually be considerable uncertainty as to how a future arrangement will work out, while in the former the child has lived with the arrangement and can have a more informed basis for his or her preference.” (Id. at p. 1103.) In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, 224 Cal.Rptr. 250, disapproved In re Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473

IS OUT-OF-WEDLOCK COHABITATION BY THE CUSTODIAL PARENT GROUNDS TO CHANGE CUSTODY AS A MATTER OF LAW?

NO, said the Court in In re Marriage of Russo (1971) 21 Cal.App.3d 72, 98 Cal.Rptr. 501. "'Sexual misconduct per se does not render a mother unfit. There was no showing ... that the children knew or were old enough to suspect or that there was so much done in their presence that they might be expected to suspect anything about their mother's misconduct.'" (Id. at p. 88.) "[I]t cannot be said that the mother's admitted indiscretion in making a home for a male companion ... necessitated a change in custody as a matter of law." (Id. at pp. 88-89.)

In another court decision, In re Marriage of Wellman (1980) 104 Cal.App.3d 992, 164 Cal.Rptr. 148, it was held that a trial court could not issue an order restraining the custodial parent from having overnight visitors of the opposite sex. The Court said, "We do not mean to suggest that a person's associational or even sexual conduct may not be relevant in deciding a custody dispute, where there is compelling evidence that such conduct has significant bearing upon the welfare of the children objectively defined.... [However,] the order in question ... is so intrusive upon the privacy and associational interests of the mother and so lacking in evidentiary support in terms of the interests of the children that it cannot be sustained.” (Id. at p. 999.)

And, in the case of In re Marriage of Birdsall (1988) 197 Cal.App.3d 1024, 243 Cal.Rptr. 287, the Court ruled that a homosexual lifestyle is not a sufficient reason to restrict visitation unless it is proved to be detrimental to the child. Although the decision was directed to homosexuality, cohabitation was also present.

IS THE MAINTENANCE OF FREQUENT AND CONTINUING CONTACT BETWEEN THE CHILD AND BOTH PARENTS A PROPER CONSIDERATION IN A CUSTODY DECISION?

YES, said the Court in In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, 231 Cal.Rptr. 433. FACTS: The trial court, after hearing evidence that the child’s mother had engaged in conduct designed to destroy the relationship between the child and the child’s father, awarded custody to the father and visitation to the mother. The evidence showed that the child’s mother moved, failed to notify the child’s father of her whereabouts, and desired that the child regard another man as her father. The Court of Appeal upheld the decision of the trial court. "In enacting [former Civil Code section 4600 (b)(1), replaced by Family Code §3040 (a)(1)], the Legislature acknowledged the importance of a child's need to maintain frequent and continuing contact with the noncustodial parent. This is the only way a child may grow up knowing both parents.” (Id. at p. 1491.) The Court concluded that evidence that the child’s mother had interfered with the child’s father’s relationship with the child and with his visitation rights proved that she would not be the parent most likely to allow frequent and continuing contact.

CAN A PARENT BE PREVENTED FROM INVOLVING HIS OR HER CHILD IN THE PARENT'S RELIGIOUS ACTIVITIES ABSENT A CLEAR SHOWING OF HARM TO THE CHILD?

The answer is NO. A parent will not be enjoined from such conduct absent a clear showing of harm to the child. And any antenuptial provisions to contrary are unenforceable. "[T]he speculative possibility of mere disquietude, disorientation, or confusion arising from exposure to contradictory religions would be a patently insufficient emotional harm to justify encroachment by the government upon constitutional parental and religious rights of parents, even in the context of divorce.... [E]motional distress to a child arising from a parental dispute regarding a child's religious upbringing may depend more on the manner in which the dispute is conducted, than the theological aspects of the dispute itself. (In re Marriage of Weiss, supra, 42 Cal.App.4th at p 115.) And, the court said that membership in Jehovah's Witnesses religion does not render a parent unfit for custody - In re Marriage of Urband (1977) 68 Cal.App.3d 796, 137 Cal.Rptr. 433