by
Robert C Borris Jr
WHEN THE OTHER PARENT AND I SEPARATE, WHAT HAPPENS TO OUR CHILDREN?
The best solution is for you and the other parent to agree on who will take care of the children. It could be either of you, or the two of you may want to share the responsibility.
In California, county superior court judges make the final decision. But in most cases, a judge will approve a custody plan that both parents want. (juries are never used in child custody or divorce cases in California.)
The idea is to make a plan that is best for your children. Remember, children can have a hard time adjusting to changes in their lives. Studies of parents and children after divorce show that children cope better with the breakup if both parents play active roles in the children's lives. The law refers to this as “frequent and continuing contact”.
Because you probably will be under a great deal of stress, figuring out the best arrangement and making it work will take a lot of patience. One family counseling service suggests that parents make a businesslike arrangement for communicating about their children-talking to each other during certain hours only and sticking strictly to the subject of the children, not “picking at old bones”.
If you and the other parent agree on a custody arrangement, you or your lawyer should attach a written copy of your plan to the divorce or separation papers that you eventually file with the court. The agreement should be written in plain language. There is no need to be fancy.
- WHO KEEPS THE CHILDREN WHILE WE WORK OUT A PLAN?
If you and the other parent do not agree on a long-term custody arrangement when you separate, then it must be decided which parent gets "primary temporary custody." This parent takes care of the children most of the time until a long-term decision is made. Either you or the other parent may ask a judge for temporary custody. Suppose the two of you do not agree. Then, in most cases, a judge will make a decision after you and the other parent have talked with a mediator or counselor who will try to help you reach an agreement.
Some attorneys advise clients who want long-term custody to start by asking for temporary custody. They believe judges tend to grant long-term custody to the parent who already is caring for the children. This is sometimes referred to as “maintaining the status quo”. But, even if you do not ask for temporary custody, you still may be able to get long- term custody later on. If you are still living together and are concerned about obtaining physical custody (and you are not endangered by threats of violence or violence) do not move out without your children. If you do, you may face an uphill battle to regain your custody later on.
If you believe that the other parent might move to another state with the children or that you or the children have been threatened in some way, discuss these concerns with your attorney immediately. It is important that you seek at least joint physical custody because if only one parent is awarded physical custody, that parent by law may move to another state (in the absence of a non removal order) and the burden is on the other parent to prove to the Court that the move is not in the child’s best interests. The California case worth reading on this issue is In re Marriage of Burgess. (1996) 13 Cal.4th 25, 37, 51 Cal.Rptr.2d 444. See also California Family Code § 3024. “MoveAway” cases are discussed later in this article.
2. WHAT HAPPENS IF THE OTHER PARENT AND I CANNOT AGREE ON LONG-TERM CUSTODY?
If you and the other parent disagree about custody, a superior court judge will decide who takes care of the children. But, the law says you first must talk with a mediator or counselor who will try to help you work out a plan. You also can go to a court mediator on your own in some counties-or to a private mediator-before you go to court.
Court Mediator: The judge will appoint a court mediator to talk with you. In some counties, you may be charged for part of the mediation costs if you need several sessions. If you have been the victim of domestic violence, you can ask that you and the other parent meet with the mediator separately.
In many counties, talks with a court mediator are confidential. However, in some counties, the mediator may make a recommendation to the judge. Then, the mediator may be called to testify as a witness if your custody dispute goes to court. You should discuss this possibility with your attorney or the mediator before mediation begins.
Private Mediator: You and the other parent may try to work out a plan with a private mediator before going to court. Your attorney may be able to help you find one. Another referral source is the Academy of Family Mediators. It is a good idea to ask about the mediator's experience and training in addition to the costs.
If you cannot work out a custody agreement through mediation, a judge will listen to both sides and make a decision in a court hearing. First, the judge may appoint an evaluator to prepare a written report in order to learn more about the issues. A parent also may request an evaluation. You should know that parents may be charged for all or part of the evaluation costs-if they can afford to pay. They may run as high as $7,000- $10,000.
Custody disputes usually are decided before other divorce disagreements such as how much support should be paid and which parent gets the house, car or other possessions. A custody case may be put ahead of many other cases on a court's calendar, too. (Evaluations are covered later in this article).
3. WHAT CHOICES DOES THE JUDGE HAVE IN MAKING A CUSTODY DECISION?
California law says that judges must give custody to one or both of the parents, or, in some cases, another adult based on the "best interests of the child" or children. It is strictly the judge's discretion on what should be considered the "best interests," but the factors often included are your child's or children's safety, health, economic security and welfare. Appellate courts will not overturn a superior court judge’s decision in this regard unless it is extremely unreasonable under the particular facts and circumstances. In appellate procedure this is referred to as “abuse of discretion”.
In most cases, judges decide between "sole custody" and "joint custody." Sole custody means that one parent has primary responsibility for bringing up the children. Usually, however, the other parent spends some time with the child. Joint custody means that both parents share custody. (If both parents ask for joint custody, the judge usually grants it.)
In making a custody decision, the court may require a parent to notify the other before changing the child's residence for more than 30 days (Marriage of Burgess, supra). In rare cases, when one parent appears to be a threat to the child's welfare or safety, a judge may not give that parent either custody or visitation rights. Or the judge may say that visitation must be supervised.
4. HOW DOES THE JUDGE DECIDE WHO GETS SOLE CUSTODY?
A judge will listen to both sides in court, if you and your spouse cannot agree on custody after talking with a mediator. A attorney can help you present your case.
California custody laws have changed a great deal in the past few years. Courts no longer automatically give custody to mothers instead of fathers (a statute as far back as the early 1970's gave preference to maternal custody of children “of tender years”), even for small children. And, generally, a judge cannot deny custody or visiting rights only because the parents were never married to each other or because one of them has a physical disability or unconventional lifestyle, religious belief or sexual preference.
When making a decision about sole custody, a judge will consider which parent can do the better job of caring for the children's needs. If the judge grants sole custody, the other parent is more likely to be given greater visiting rights.
A judge also may consider where a child will find the most wholesome and stable home. To decide this, the judge could rely on the evaluation. The evaluation might tell how close the home is to schools and relatives and how much supervision and care a parent can give the children. However, the judge's decision is not based on how much money each parent has or earns.
5. HOW DOES JOINT CUSTODY WORK?
You and the other parent can have either “joint legal custody” or “joint physical custody” or both. other.
Joint Legal Custody: This means that parents share the right and responsibility to make important decisions about their children’s health, education, and welfare. These decisions might include such things as where the children will go to school or whether they should have braces on their teeth. It also means parents share information about the children with each other. (No matter who has custody, both parents have equal rights to information about their children from schools, doctors and others.)
Joint Physical Custody: This means that the children spend time living with each parent on a regular basis. It does not mean that the children must spend equal amounts of time with each parent, although they may do so. The children might spend school days with one parent and weekends and some vacations with the other. Or, the children might stay with their mother for a week, month or longer, then move in with their father for a time. If the parents live near each other, the children may go back and forth between them without an exact schedule. Usually, parents who want joint physical custody work out a routine on their own or with a mediator's help.
A judge might give both parents joint legal custody but not joint physical custody. In this case, both parents have equal responsibility for important decisions affecting the children's lives but the children live mostly with one parent. The parent who did not get physical custody usually will have regular contact with the children. A judge who approves joint physical or joint legal custody may name one parent as the "primary caretaker" and one home as the "primary home"- for purposes of determining public assistance.
6. DOES A JUDGE CONSIDER WHAT OUR CHILDREN WANT?
Children's wishes may count in a court's decision. The law says that when a child is "of sufficient age and capacity to reason," a judge must consider what the child wants. The judge decides when a child has reached this stage. And, the judge is required only to consider what the child says, not necessarily to follow it.
Once in a while, a court may decide to appoint a attorney to represent the child. Then, both parents are charged for the attorney's fees according to how much they can pay. If they cannot pay part or all of the fees, the court may order the county to pay.
A judge who believes that a custody dispute threatens the interests of the children may order parents and children to get counseling. If there is a history of domestic violence in the family, each person may be permitted to have separate sessions with a counselor.
7. WHO WILL PAY TO SUPPORT OUR CHILDREN?
You and the other parent are both responsible for supporting your children.
A judge usually will say how much each of you should pay in child support. Among other things, the decision will be based on how much time each of you spend taking care of the children, how much money each of you makes, any large obligations each of you has and the expense of raising your children. Child support is computed by computers using a computer program known as “DissoMaster©” which utilizes a state mandated algebraic formula.
You should know that the custody arrangements you make can have an important effect not only on child support decisions but also on your right to stay in the family home. The custody arrangements also can affect your right to claim certain tax benefits, such as head-of-household status, dependency exemptions or the child-care credit, as well as public assistance benefits. You probably should check with your attorney before reaching a final agreement. In fact, it is a good idea to talk with a attorney early on even if you and your spouse agree about custody arrangements. A attorney can tell you about your rights and duties concerning your children-and about property, support and tax matters. A attorney also will know whether you should file for custody in California or in another state.
8. HOW WILL I RECEIVE CHILD SUPPORT PAYMENTS?
Since July 1, 1990, the courts in many cases have ordered a parent's employer to pay child support directly to the other parent. This is known as a "wage assignment." If you receive public assistance, the other parent must make the child support payments through the district attorney's office. The money is used to pay back the state for the public assistance payments you receive.
9. IF A CUSTODY PLAN DOESN’T WORK, CAN IT BE CHANGED?
Yes, like child support and spousal support, child custody orders are always modifiable. The easiest way to change a custody arrangement is for you and the other parent to come up with a new plan and ask a judge to make it official. Judges often approve changes even without a hearing if you both request them. If you cannot agree on changes, either of you may ask a judge to make the change. The judge's decision will be based on your children's best interests.
However, you should know that getting the arrangement changed may be difficult if the children are reasonably well cared for and the custody plan has been in effect for some time.
10. WHAT CAN I DO IF THE OTHER PARENT WON’T LET ME VISIT THE CHILDREN?
If the other parent refuses to let you visit the children when the judge said you could, you or your attorney may ask a judge for a "contempt" order. This means that the other parent could go to jail for continuing to refuse. And, if the judge finds that the other parent meant to keep you from visiting the children, you may have grounds for getting custody. However, a judge may require that both parents try working things out with the help of a mediator before going to court.
You cannot legally stop making child support payments to pressure the other into letting you see the children. And, the other parent cannot legally refuse to let you see them because you have not made support payments on time or at all. Instead, either of you can ask the judge to make the other live up to his or her responsibilities.
A parent has a right to travel with the children. But in certain cases, a judge may not allow travel without the other parent’s written consent or the court’s permission. Depending on the circumstances, the judge can change this policy during a hearing; and, either parent may be charged with a crime for taking the children out of the state in order to take custody or visitation rights away from the other parent.
If a parent has been violent toward the children or has threatened violence, a judge may order that another adult be present when that parent visits the children.
11. CAN SOMEONE OTHER THAN PARENTS HAVE CUSTODY OR VISITING RIGHTS?
Yes. California law says that judges first must consider giving custody to one parent or both. But a judge may give custody to another person such as a grandmother, stepfather or friend-without the parents' consent. In such a case, the judge would have to believe that giving custody to either parent would be "detrimental" or harmful to the children and that the children would be better off with someone else.
If custody is given to a person other than a parent, the first choice usually is someone who already has made a good home for the child.
A judge may give visiting rights to anyone interested in the child's welfare. The law specifically says that stepparents and grandparents who ask for visiting rights may attend mediation sessions along with parents. If no agreement is reached through mediation, the judge will decide whether stepparents and grandparents may visit the children. However, grandparents will not be given visiting rights against the wishes of both parents.
CHILD CUSTODY EVALUATIONS
When parents divorce, the divorce decree must establish plans for child custody, visitation/access and child support. Many parents use mediation or their attorneys to help them work out plans for the children. The custody settlement or parenting agreement is then submitted to the court for approval.
When parents are not able to resolve disputes about child custody, a trial will be held and the judge will decide the issues. Prior to the trial, the judge may require the family to participate in a child custody evaluation. A custody evaluation provides information about the family to help the judge reach a decision that will be in the best interests of the children.
While it is best if parents can reach an agreement about custody, this article is intended to help you understand the custody evaluation process. This information can help you better participate in this important process.
What is a Custody Evaluation?
A child custody evaluation is:
- an objective assessment of the needs of your children and each parent's ability to meet those needs.
- concerned with the strengths and weaknesses of both parents.
- directed toward helping your family make a positive adjustment to divorce.
- attentive to past events, present resources and future needs of the family.
- focused on the "best interests" of children.
A custody evaluation does not:
- determine fault or blame for your divorce.
- take one parent's side against the other.
What Happens in a Custody Evaluation?
Interviews: A child custody evaluation will consist of a series of interviews. You should expect to talk to the evaluator alone and with the other parent. An individual, private appointment will give you the opportunity to present your issues and concerns about the children and the other parent. Conferences with both parents allow the evaluator the opportunity to assess parents' capacity to work together. The evaluator may also schedule an interview with you and the children. This may take place either in the evaluator's office or in your home. Conferences with you and your children will allow the evaluator to observe the relationships between family members.
A thorough evaluation requires that both parents be involved in the process. Be cautious of taking the children to your own separate evaluator. Courts may consider these evaluations to be incomplete. One sided evaluations may be a duplication of time and money and may subject your children to added stress.
Near the end of the evaluation, the evaluator may ask to meet with you to discuss the findings and conclusions. Parents may find this information helpful in reaching an agreement regarding plans for the children .
Information Gathering: The evaluator may request your written consent to obtain school and health records, social service and police information and any other documents which contribute to a complete understanding of the family. The evaluator may wish to talk with some of these people in order to understand how others see the issues.
Written Tests and Psychological Evaluation: Psychological testing may be required when information about each parent's emotional and mental status would be helpful to the judge. A psychological evaluation is conducted by a trained psychologist. The psychologist will want to talk with each parent and may administer several paper and pencil exercises. You can ask the evaluator to tell you more about the kind of psychological evaluation that is being requested.
Who is the Custody Evaluator?
The child custody evaluator is usually a mental health professional who is employed by the court, a professional in private practice or employed by an agency contracted to provide evaluation services for the court. Evaluators have been trained in the divorce process and its effects on families, as well as child development issues and the needs of children.
The custody evaluator's job is to assist the court in determining legal and physical custody of the children. The evaluator will make an objective assessment of the needs of the children and will not be an advocate for either parent.
How Can I Prepare for the Evaluation?
- Cooperate with the evaluator. He or she is there to help your family and the judge figure out what will be in the best interests of the children.
- Separate your marriage problems from your parenting concerns. You may still have a lot of hurt and angry feelings toward the other parent but marital issues may not be relevant to child custody issues.
- Don't look at the custody evaluation process as a win/lose situation. This is a good time to try and put the past behind you and focus on the future.
- Parents can help their children by being open and honest with the evaluator.
- The evaluator can be a resource of information. Ask about reading material, parent education classes, counseling and other help.
- Keep your appointments.
- Organize school, health and other information that you think will be helpful.
- Make notes of the questions you want to ask.
Custody evaluators regularly interview and observe children. It is best if this can be done in a comfortable and non-threatening environment. The evaluator understands that the children may be experiencing a range of feelings about the divorce. Depending upon the ages of the children, the evaluator may have the children participate in structured play, draw pictures, or tell stories in order to talk about their feelings.
Parents often want to know, "Will the evaluator ask my children where they want to live?" Children's thoughts, feelings, and experiences are important. However, the evaluator will not ask children to choose between parents. This would not be fair to the children and only keeps them in the middle of your dispute.
What Happens to the Information?
Most custody evaluators will prepare a written report of their assessment. If the case goes to trial, the judge or the attorneys may ask the evaluator to be present to explain the report and its findings. The report is intended to give the judge a clear picture of the family and to provide information about how the children's needs can best be addressed. Most evaluators will not make recommendations unless they have seen both parents or have incorporated an evaluation from another professional who has seen the other parent when one parent is living too far away to participate in the evaluation.
Court rules vary as to who has access to the report. The report may be available to both parents or may be restricted to the judge and attorneys. In most jurisdictions it is considered a confidential document and can be ordered sealed by the court.
What Does a Custody Evaluation Cost?
Ask your attorney or the judge about your responsibility to pay for the evaluation. Costs vary from region to region. Alameda County and Contra Costa County Family Court Services perform these services at the rate of $35.00 per hour. Other Court-connected services may charge a flat fee or may charge by the hour. The fee is usually divided between the parents. Part or all of this fee may be required in advance. Private evaluators usually charge by the hour and may require that the full fee or a substantial deposit be paid before the evaluation begins. A realistic range of fees for private evaluators is $7,000- $10,000.
What if We Reach an Agreement?
Inform the evaluator as soon as possible if you and the other parent reach an agreement. The custody evaluation can be stopped and the trial will be unnecessary.
What Does "Best Interests" Mean? Most courts require that child custody decisions use the "best interests" standard. Defining this term is a complex matter and definitions may vary. However, "best interests" generally means that:
- Your children have the right to love both parents and to have access to each parent without interference.
- All children benefit from an absence of conflict between their parents. Children do better if parents cooperate and work together.
- Children need to be safe, secure and protected from physical, emotional and sexual abuse.
- Children of different ages have different needs. A two year old child may not need the same schedule as a ten year old child. The custody evaluator will consider your children's specific needs as well as their adjustment to home, school and social environment.
- Children need continuity. Parenting schedules should be followed so that children can depend on and look forward to time with each parent.
- Children do best when parents support a relationship with the other parent.
WHAT HAPPENS WHEN ONE PARENT WANTS TO MOVE AWAY
In an initial custody determination, the court has wide discretion to choose a parenting plan that is in the best interests of the child. Under In re Marriage of Burgess, a parent seeking to relocate with the child bears no burden of establishing that the move is "necessary." However, the trial court must consider, among other factors, the effects of relocation on the best interests of the child, including the health, safety, and welfare of the child and the nature and amount of contact with both parents. A paramount concern is the need for stability and continuity in the life of a child, and the harm that may result from disruption of established patterns of care and emotional bonds. The Legislature has expressed its intent to affirm the decision in In re Marriage of Burgess, and to declare that ruling to be the public policy and law of California. While Family Code Section 3020 states the public policy of maintaining a child's continuing contact with both parents after divorce, it does not impose a burden of proof on a parent seeking to relocate with the child to establish necessity for the move. A trial court may consider the extent to which the minor child's contact with the noncustodial parent will be impaired by relocating, but it is not restricted to any particular formula for contact or visitation. Nor is it required to make a custody determination that preserves the pre-dissolution status quo.
There is no statutory basis for imposing a specific additional burden of persuasion on either parent to justify a choice of residence as a condition of custody. Even when there is a long established custody arrangement, the noncustodial parent has no burden to prove that the custodial parent's care is deficient or that the child's welfare has suffered. In cases involving international relocation, the child's best interests at a minimum require, continuing contact between the child and the parent remaining in this country, and guaranteed enforceability of the California custody order in the foreign nation. The court's focus is the best interest of the child, not the parent's wishes. In presenting a request for relocation as part of an initial custody determination, counsel for the relocating parent should present a clear plan for maintaining continuing contact with the other parent. Use of web cams and other technological innovations should be part of a plan where relocation involves significant distance. The trial court is always bound to make a custody decision based on the child's best interest. Depending upon the posture of the case, the trial court will use either the best interest analysis or the changed circumstances analysis.
