How Courts Decide Child Custody Disputes In California

Question: How do the courts decide child custody?

Answer: Courts have discretion in deciding with whom children will live, but are guided by two principals: maintain the status quo and provide frequent and continuing contact by both parents with minor children.

The courts are empowered by the Family Law Code (F.C. 3021 and 3022) to make orders for the custody of minor children. The courts have discretion as to what custody/visitation schedule they order, but they are guided by several basic statutory principles. The court must put the child’s health, safety, and welfare first. Second, unless it is not in the child’s best interest (for instance in situations of child abuse or domestic violence), a custody/visitation order must take into account the statutory policy that children have frequent and continuing contact with both parents after the parents have separated or divorced. Family Code Section 3020(b) states that both parents should share the rights and responsibilities of rearing their children except where the contact with one or more of the parents would not be in the child’s best interest.

The code does not define “frequent and continuing contact.” Nor does it specify a preference for any particular form of contact.

Courts expect parents to make an honest effort to work collaboratively to create a custody schedule that is in the child’s best interest; custody litigation is disfavored

Contest custody litigation is time-consuming and expensive. Contested custody litigation is rarely in the child’s best interest. When one or more of the litigants uses the child as a tool to attempt to hurt their spouse, the child is not served. It is the policy preference of the California courts that custody and visitation issues be decided in a collaborative environment outside of the courtroom. This is not always possible. But, parties should give due consideration to attempting to work with their spouse to establish a custody and visitation schedule that is in the best interest of the children and that will satisfy all family members.

When Courts must decide custody issues they will balance the desire to maintain consistency in the child’s living arrangements with the statutory directive that both parents have frequent and continuing contact with both parents

When the Courts are called upon to decide custody, they are reluctant to upset the custodial arrangement in existence prior to a hearing, especially with young children.  However, the court’s balance the preference for the status quo with the statutory directive that the child have frequent and continuing contact with both parents ( Family Code 3020).

Domestic violence and child abuse situations are different. And a domestic violence perpetrator will not find the court a hostile place if he or she seeks a custody award. Absent circumstance involving domestic violence or child abuse a client bent on keeping a minor child away from the other parent faces an uphill battle in court.

All contested custody issues between parties, whether in connection with an initial temporary order or a permanent order or a modification of an existing order must be set for mediation pursuant to Family Code Section 3160. Mediation means different things depending on the county. In all counties of California except for Los Angeles and Orange County, the “mediator” will make a recommendation to the judge on child custody after the mediation. In Los Angeles and Orange County, the mediator will not make a recommendation. Sections 3170 and 3171 are the Family Code are not suggestive. The statutes compel mandatory mediation. It is important for parties to understand what mediation means. As noted above, mediation means one thing in Los Angeles and Orange County and something very different in all other California Counties such as Ventura, Riverside, San Diego and San Bernadino.

Posted in Child Custody

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