Of all the issues in family law, few are more fraught with complications than that of child custody.
The bond between parent and child is perhaps the strongest of all human bonds, and when a conflict over child custody occurs, things can devolve into chaos very rapidly.
In order to navigate these murky waters, the laws concerning child custody must be correspondingly complex. And if you find yourself in a custody battle, or with one looming on the horizon, you must have a good understanding of the law, so that you can advocate for yourself as effectively as possible and prepare for all eventualities.
In this article, we shall discuss some of the issues and complications surrounding child custody specifically in Orange County, California.
What Is Child Custody?
Physical versus Legal Custody
The first thing that you need to know about child custody is that it is not just one thing. In fact, there are two main elements of child custody:
- Physical custody is the first thing that comes to mind for most people when they think of child custody: it is the question of whom the child will live with and spend most of their time under the direct care of.
- Legal custody involves the question of who makes the decisions for the child in important matters such as health and education.
These types of custody do not necessarily go together. A parent may obtain one type of custody, but not the other.
So, who gets custody? Well…
Sole versus Joint Custody
In California, joint custody is supposed to be the default arrangement. Joint custody means that both parents share custody of the child:
- In the case of physical custody, this means that the child spends a significant amount of time with both parents. The amount may not necessarily be a perfect 50/50 split (which would be near-impossible), but each parent will get a significant share of time.
- In the case of legal custody, this means that both parents have input over decisions concerning the child. One parent cannot make a major decision about the child’s future without the approval of the other parent.
Joint custody is the legal default arrangement. Each parent has an equal right to custody of their child, so if there is no conflict between the parents, they will be asked to share custody.
If the parents do not agree, however, then the court will have to make a decision about who receives child custody, and once this process has begun, there will be no presumption of joint custody.
Some cases of contested custody do end in joint custody, but in others, one parent will be awarded sole, or primary, custody. This means that:
- In the case of physical custody, a child will spend most or all of their time with one parent.
- In the case of legal custody, one parent has the right to make all legal decisions for their child.
However, while sole custody is fairly common, legal custody is somewhat rarer. Even if you do not get to spend equal time with your child, you should still have some decision making power in your child’s life, barring any extreme circumstances.
There are also some gradations between sole and joint custody; it is not an all-or-nothing proposition. For instance, parents may receive partial legal authority over certain aspects of their children’s lives, but not over others.
Even when one parent is awarded sole custody of a child, the other parent still typically has visitation rights. Just because you lost a custody battle does not mean that you never get to see your child!
In some cases, the court may mandate a strict schedule for visitation, laying out in detail when each parent is allowed to have the child. In other cases, particularly where the parents are on amicable terms and there are no major points of conflict, the court may issue a much more permissive visitation order allowing parents reasonable leeway to make their own decisions.
Not all parents have visitation rights. Sometimes, a parent may be so dangerous that it is not in the child’s best interest for the parent to have any visitation rights at all. Alternatively, the court may order supervised visitation, which may be overseen either by the custodial parent or by an outside party.
How Family Courts Decide Child Custody
The Best Interests of the Child
Family courts have broad latitude to make decisions about child custody. However, they are given the mandate to make those decisions in the best interests of the child.
This, above all, is the guiding principle on which family court is supposed to function. The proceedings of a family court may seem unfair to one parent or the other, and sometimes they actually are. This is because the court’s primary goal is not fairness, but the protection of the best interests of the child.
Of course, the question of what in the child’s best interest is not a simple one. As a result, courts typically consider several factors…
Major Factors of Consideration
Parental Involvement. Courts recognize that it is best for children to be raised by both parents, and so they will usually try to work out a plan that allows both the mother and father to be involved at least to some degree. In addition, they are more likely to favor a parent who shows a positive attitude towards co-parenting and does not try to undermine the child’s relationship with the other parent.
Parental Ties. Sometimes, a child will be much more emotionally invested with one parent than with the other, particularly if one parent did the lion’s share of the parenting. Family courts will take the child’s relationship with each parent into account.
Community Ties. A child’s lifestyle has to do not just with their parents but also with their friends, neighborhood, school, and community. Courts recognize that it can be quite disconcerting for a child to have to leave their former life behind and start anew, and so they will try to allow for an outcome which will provide the child with the greatest sense of continuity, keeping them in the same school and community if possible.
Siblings. California courts recognize that it is in the best interest of children’s well-being not so separate siblings. Split custody arrangements in which siblings are divided between parents is generally not an outcome favored by the courts except in rare circumstances.
Criminal History. A parent will be denied custody if they are a threat to the child’s health or safety. If one parent has murdered the other, or committed rape or sexual abuse (including if the child is conceived through rape), then they will almost always be denied a chance to raise their child. A parent may be denied custody based on these factors even if they have not been convicted in a criminal court, so long as there is some credible evidence that the act in question occurred.
Other Safety Issues. Aside from having committed a violent crime, a parent can be denied custody if there is some factor in their lifestyle that poses a threat to the child. The most prominent of these factors include alcoholism and other drug abuse.
Child Preference. Children are allowed to have a say in which parent they would prefer, and courts must hear their views… but only if they are mature enough to do so. Although the law typically allows children over 14 to decide which parent they would like to live with, the rules about when and how younger children can make this decision are rather vague.
Factors Which Cannot Be Considered
While the entire job of a family court in deciding custody is, in a sense, to “discriminate,” or discern, which parent will be better for the fostering of a child, family courts cannot engage in what we would customarily think of as discrimination. They are not allowed to deny you custody of a child for an unfair reason.
Family courts in California are not allowed to consider sex as a factor. In the past, courts often favored mothers via a legal theory known as the Tender Years Doctrine, but this is no longer the case in California, and courts cannot discriminate against fathers (or mothers) when deciding custody.
Similarly, the family court cannot discriminate against you based on your age, race, sexual orientation, religion, or disability. If a family court attempts to deny you custody of your child based on any of these factors, you can and should fight back!
In rare cases, when both parents are so dangerous to the well-being of the child that neither can be trusted to be a good parent, then the court might give custody to a third party.
Often, this third party is a non-immediate relative of the child, such as an aunt, uncle, grandparent, or even an older sibling. If you are concerned about a child in your extended family whose parents are incapable of providing the child with anything approaching a normal lifestyle, and you have the means to care for a child, then you may wish to consider petitioning the court for custody.
This is a bold step, and has the potential to greatly disrupt a child’s life, so it should not be taken lightly. In some cases, however, it truly is the best option for a child, and we would argue that in such cases you have a moral duty to look out for the best interests of children even if they are not your own.
How the Process Works
Let’s say that you and your spouse find yourselves with a dispute over custody. What happens next? Here is a very broad outline (keep in mind there are several further potential stages depending on the case):
Request for Order
The first thing you must do is submit a request for an order to the court, laying out a case as to why you should be given custody of your child. You should make this argument as strong as possible, and to do this, you will likely need the help of an attorney.
Custody battles can take a long time to resolve, but if your child is in imminent danger, then you can make an emergency request for custody to the court. However, you must provide evidence of your claims. In cases where there is no emergency but still some degree of urgency with regards to the proceedings, you may be able to get the court to speed things up.
Mediation and Investigation
Ordinarily, after a request has been filed, you will have to go through a court-ordered mediation. This involves meeting with the other parent under the supervision of a mediator, with no lawyers present, to see if you can work things out amicably. You may also arrange additional, informal mediations with or without lawyers.
At this stage, you may request an independent child custody evaluator to investigate your case. The evaluator will conduct interviews and psychological tests, and review records and other evidence, in order to make a determination as to what is best for the child. This determination will carry significant weight in court, although the judge will still be the one to make the final decision.
If you and the other parent are unable to hash out an agreement, then there will be a final court date at which point the judge will make the decision regarding custody.
The judge’s decision is not necessarily set in stone. It can be appealed under certain circumstances, and it may also be reevaluated at a later date if new evidence comes to light or if the situation changes. For instance, if a parent tries to take a child to live in another country (or another part of the country), this may lead to a reevaluation.
Common Issues in Child Custody
Child abuse is rightfully taken very seriously by family courts, and if it occurs, it will heavily damage the culpable party’s chances of getting custody of their child.
If you suspect that the other parent is abusing your child, you should report this to the court. However, the allegation itself is not enough. The court will need some independent evidence of abuse before they can deny the other parent custody.
Just as child abuse is taken seriously, so are false allegations of child abuse.
If there is evidence that a parent knowingly (as opposed to mistakenly) made a false claim of child abuse, they may be punished. They will greatly harm their chances of getting custody of their child, and may be forced to pay extensive amounts in court costs and attorney’s fees that came about as a result of their lie.
This is a difficult balance for family courts to walk. On one hand, they want to take child abuse seriously and not dissuade reports made in good faith. On the other, they want to ensure that allegations cannot be weaponized by unscrupulous parents. An error in either direction has the potential for great harm, and family courts do not always walk this balance perfectly, but they are obligated to do as well as they possibly can.
Your child has the right not to be abused, and you have the right to not be accused of something you did not do. These two rights are not at all incommensurate, and if you find yourself in either situation, you should have no qualms about standing up for yourself and your child.
Parental alienation occurs when one parent attempts to turn their child against the other parent, through badmouthing them or giving them some biased version of why the divorce occurred, often involving concepts which a child may be too young to properly understand.
By doing this, parents can turn a child against the other parent (or “alienate” them) completely. The child, lacking the maturity to recognize the sort of nuance that an adult would see in such a situation, can be led to take an all-or-nothing approach to their parents, seeing one as an angel and the other as a villain.
Parental alienation is particularly a problem with older children, who may still be young enough to be manipulated but who are old enough to have a say in which parent they would like to have custody.
Parental alienation is difficult to prove. It’s not against the law merely to badmouth your ex-spouse. However, if you can show that the other parent has been engaging in conduct intended to turn your children against you, then this will count strongly against them in family court.