In deciding a child custody case, there are several factors that the court will take into consideration. Most importantly, the court’s largest concern is always to protect and promote what will be the most beneficial situation for the children. The “Best Interest of the Children” will always be the most important.
The “Best Interest of the Children” will always be the most important.
What Factors Into The “Best Interest of the Children”:
- Age and health of the child
- Emotional ties between the parents and the children
- Who has been the primary parent
- Amount of time each parent spends with the children
- History of family violence, substance abuse and current living environment
- The employment and ability of both parents to properly care for the child
Child Custody Agreements Attempt to Closely Resemble Your Normal Routine
In an effort to ensure that the children are inconvenienced as little as possible, the court will make every effort to maintain conditions that closely resemble the pre-divorce routine. In other words, the court will attempt to make the new arrangement as close to normal, or as close to the situation that existed prior to the parties filing for divorce.
Courts also realize that parents often decide to become more involved after filing for divorce, and many judges will encourage or allow a parent who has been less involved in child care and more of the breadwinner to become more involved. This happens particularly when the parent can show a demonstrated commitment to stepping up to the plate and being more involved in the children’s lives.
What if You are Unable to Reach a Child Custody Agreement?
In the event that the parties cannot reach a child custody agreement, the court will make a temporary order regarding custody at the first Order to Show Cause hearing. It is important for you to fight for the best possible custody arrangement early on in the divorce, since it is likely these temporary custody orders will have a great affect on the permanent custody orders.
If you end up going to court on the issue of temporary custody you will first have to go through a court-ordered mediation process where you and your spouse will meet with a mediator to try to resolve your child custody issues. Make sure that you are prepared, as many parents have no idea what to expect from this process and end up agreeing to an arrangement that they later regret.
Court mediators often exert pressure on you to settle your case, so it’s best to know what result you are willing to settle for and when to fight over custody if you can’t agree.
In California, each county is different. For example, in Orange County and Los Angeles County, the court mediators are confidential and they do not report back to the court with any recommendations. However, in Riverside and San Diego counties the court mediator will make recommendations to the court even if you don’t reach a child custody agreement. These mediators are not necessarily experienced, and in some cases they tend to favor either mothers or fathers. Because of this, it’s extremely important to set expectations beforehand and to prepare for mediation with your attorney.
What if Mediation Doesn’t Help You Reach a Child Custody Agreement?
If you didn’t reach a child custody agreement at mediation, the course will then proceed with a court hearing or Orders to Show Cause. At this time the attorneys will probably try again to see if they can assist you in settling temporary custody orders. Some attorneys will urge you to make large compromises and give in, insisting that the orders at this stage are temporary in nature and are being agreed to “without prejudice” as to the permanent custody orders.
While it’s always a good idea to reach compromise, be aware that what you agree to at this point will have a profound impact on what is put in place after your divorce. If the terms aren’t close to what you want at this stage, don’t be afraid of fighting for more.
Your attorneys may also seek an informal “chambers conference” with the judge to present their case in the privacy of the judge’s chambers without your being present. While this can be a good thing in that it helps resolve the case, your attorney may pressure you by telling you that the judge has already decided your case and that you are bound to lose unless you agree to a particular arrangement.
Do not give in that easy. You can still fight for what you want.
In some cases, a judge will lean towards one outcome but once they are presented with the full evidence in open court, they have a change of opinion. Be sure to have a candid conversation with your attorney about your chances before proceeding with a hearing.
If you cannot resolve custody oftentimes the court will order a custody investigation or a child custody evaluation otherwise known as a 730 evaluation.
Is Custody Affected by Who Files for Divorce First?
Whether or not you file for divorce first has no impact on how the court will decide custody. However, there can be a considerable strategic advantage to the person who files first simply because that person is setting the agenda for the case rather than defending.
That being said, if one spouse has done egregious things that led to the divorce, it’s possible a judge would be swayed when considering custody. Talk to your attorney not just about the legal issues, but also about the strategic considerations you should consider regarding custody issues.