One of the most difficult issues to resolve in a California divorce is child custody.
Oftentimes, parents will reach an agreement on the parenting plan without court intervention.
But, what happens if you and your spouse don’t see eye-to-eye? That’s when the family court has to get involved to resolve any disputes on child custody and visitation.
How does a judge decide who gets custody? What factors does the court consider? And how do you prepare for a child custody case?
I sat down with Certified Family Law Specialist James Hoover to get answers to these questions.
Let’s dive in.
What is the difference between legal custody and physical custody?
James Hoover: Legal custody and physical custody are the two top issues to address when there are children and the parties are going through a divorce.
Legal custody basically defines who has the decision-making authority with respect to the health, safety, and welfare of the children; it’s either going to be joint or sole.
Legal custody determines things like who decides where the children go to school and what medical treatment they receive. But you can’t touch religion and many other things as well.
People are going through a divorce for a reason. They may not share the same aspirations, dreams, and whatnot, but the child has a right to experience that both in separate households. That’s why you can’t really touch certain issues on legal custody.
Under legal custody, by and large, it’s joint legal custody. I see probably 80% to 90% of the cases where it’s joint legal custody, meaning both parents have the right to make those decisions.
If they cannot agree, then it goes through a different process. But, even if its sole legal custody to one parent, under family code section 3025, the out parent still has the right to access the records and so forth. They are still allowed to be on the emergency contact list because that person is a biological parent. It just means that the other parent has the right to make decisions regarding key issues.
Often, I’ll also see judges rule for joint legal custody with one parent having the final decision-making authority.
Physical custody, frankly, is a misnomer. It’s something that people get hung up on, but what’s most important is timeshare. Physical custody, like legal custody, is either joint or sole.
Often in a custody order, it will read, “The party shall share joint legal and joint physical custody.” It essentially determines who the primary parent is, and that’s fodder for disputes between parents because titles can be important, and really, they should not be important.
The reason why I say physical custody really is a misnomer is that you can have a 70/30 split of timeshare, and that’s considered joint physical custody by the court. You could also have a 50/50 split regarding timeshare, and that’s considered joint physical custody by the court, yet those two different timeshare scenarios are different.
I’d say probably 20% to 25% of timeshare per law and per practice is a designation of sole physical custody, but again, that designation on a piece of paper holds very little weight, except for the one unique scenario: when one party moves away or moves out of county. That’s called a move-away request, and the threshold issue the court will address is the designation of the custody.
How do judges decide who gets custody of a child? What factors does the court consider?
First of all, the courts do not want to decide. The overall presumption is that mom and dad know best. The courts decide, if they have to decide, just like any law that exists out there. A law is created in American jurisprudence in California, in this case by the California family code. It is created by our California legislature and also what’s called case precedent or stare decisis, which means other appellate courts or the California Supreme Court has ruled on cases regarding these issues.
Under the family code there is a wide spectrum of codes and laws regarding what is in the child’s best interest, as well as case law that went on appeal and in the California Supreme Court.
In Santa Clara County or in other counties, there will be a local rule that will address the issue procedurally regarding custody and timeshare. One of the main areas of family law in any particular jurisprudence is that the courts treat the child as most important. In fact, it’s on what I call a separate track; you’ll have the financial issues to be addressed, domestic violence being addressed, and then there’s the custody track with respect to minor children.
So, how do courts decide?
Since the general presumption is that mom and dad know best, the court will not get involved, unless it’s an emergency and/or after the parties have attended mediation. Under family code section 3117 local rule 2A and B in Santa Clara County, that’s how it’s done.
If the parties cannot agree, then one party will address the court in what’s called request for order. That covers the issues of legal custody, physical custody, timeshare, parental conduct orders, a variety of issues to be addressed by the court.
They’ll put that before the court, but the court won’t address it at the initial hearing. It’s like a law in motion calendar, or just like you would see maybe in civil court, but the court is not going to address it.
The court requires the parties to go through mediation, again because the presumption is that the court does not know best, that the California legislature does not know best, that the attorneys don’t know best, that mental health professionals don’t know best: only mom and dad know what’s best.
Now, of course, mom and dad, respectively, think that they know best, and they may not reach an agreement. So, they go through mediation, which in certain counties, is confidential and in other counties it is not.
If they don’t have an agreement, then the issue goes back to the court, and then it’s a slow process through judicial custody conferences, judicial assisted mediation, perhaps evaluations, brief focus assessments, emergency screenings, and so forth.
You mentioned mediation, which in some counties, it’s confidential, and some counties, it’s not confidential. Can you elaborate on that? Confidential from who?
Confidential, meaning no one, notably the court can find out what the parties talked about and the respective positions.
Is that the same as a recommending county and a non-recommending county?
Yes, you’re spot on. A recommending county is also termed a non-confidential county and there’s two camps on that dispute as to whether it’s deemed a violation of one’s due process to have that issue vetted before a judicial tribunal with counsel.
The other side is, no, it may be a violation due process, but you get results much sooner through the recommending non-confidential counties because attorneys are not allowed to be there, and since there’s no presentation by evidence of attorneys, the judge isn’t there. The mediator provides a recommendation.
While you have a right to cross-examine the mediator, I find it ineffective. The courts, often, rubber-stamp what the mediator wants.
Through this whole process, the general amorphous standard is what is in the child’s best interest.
“What is in the child’s best interest?”
There are factors. There are factors that the courts will consider, and that evaluators and mental health professionals will consider. Some of those factors are enumerated under the family code, some are not.
The most notable one is domestic violence. The second is substance abuse. Both are issues that go to the harm or imminent threat of harm to the child. Domestic violence can be either towards the child or towards the parent of the child, and substance abuse involves alcohol, prescription medication, marijuana, and so forth.
Absent domestic violence and substance abuse, the presumption under 3011 and 3020 of the family code is that it is in the child’s best interest to have frequent and continuing contact with both parents. Frequent and continuing contact doesn’t necessarily mean equal timeshare, but it means more than a couple hours here and there during the week.
Other factors are stability, continuity, status quo, age of the child, preference of the child, any mental disorders of the parents, if either parent is not med-compliant and high-functioning, special needs of the child, livability of the parents’ respective locations, and so on. Those are just some of the factors that are to be addressed in determining what’s in the child’s best interest.
How do you prepare for a child custody case?
I have a 200-page protocol that I give every client when there’s a custody issue. After many years of family law experience, I’ve handled several hundred custody cases, and I’ve seen the trends in the most amicable cases and in the most contentious cases that have given me the impetus to produce helpful guidelines.
Number one is addressing the needs of the child, and number two is knowing your audience.
That audience is essentially the judge and how the judge is going to see it.
It’s very important for me when I work with a client to know what the client’s concerns are regarding custody and timeshare and addressing those while also educating the client as to what a court would do in that particular situation.
But, the very first thing I’m going to do is find out if the child even knows the two parents are going to go through a divorce.
I give them a pamphlet called, What to Tell the Child If We’re Going to Go Through a Divorce.
Then I give them a book, called Mom’s House, Dad’s House.
These three things aren’t litigation-based: they’re educational, and in the child’s best interest. Whether my client is right or wrong doesn’t make a difference; this child is innocent in this dissolution, and it’s important that I educate my client in such a fashion.
What comes next?
I then spend time talking to my client about the procedural aspects and setting expectations and a strategy.
If the parties do not agree with respect to custody and timeshare, it’s one of two things. One parent believes that the other is not fit as a parent, for a variety of reasons, and the aunt or the other parent believes that that parent is what we call a restrictive gatekeeper. In other words, they are an alienator or an undo influencer.
These are themes that the courts see in triage day in, day out, hour in, hour out. Dad’s an unfit parent and Mom is a restrictive gatekeeper.
What I’ve done is I’ve created these protocols for clients to follow that are not only in the child’s best interest, but rehabilitate the image that the other side is trying to portray.
What does that mean? I want my client to read books on co-parenting. I want my client to take co-parenting classes. I want my client to take parenting classes in general. I want my client to agree to parental conduct orders.
I want my client to sign up for mediation and ask the other side to sign up for mediation. I want my client to ask the other side, “Would you agree to co-parent counseling?” and I want my clients to use a custody coach, whether that’s public or private.
I want my clients to address with the other side, “Should our child be in confidential counseling?” Always confidential counseling, and so on and so forth.
What does that do?
That demonstrates to the judge that my client is not just attacking Dad or attacking Mom. My client is trying to make himself or herself the best parent possible.
This is the second thing. Know your audience. When I go into court, I’m not just attacking Dad or attacking Mom; everyone does that.
Preparing my client for litigation after I’ve educated them in measures that are acting in the child’s best interest, if we have to go into a case, I can demonstrate our concerns to the court. I can also point out why we do not agree to the request by the other side isn’t because the other side has a new girlfriend or because my client may have had too many beers one particular night.
It’s because we’re truly acting in the child’s best interest. “It’s not just words, your Honor.” We’re going through the hard work. It is important to note that I know my weaknesses; I am a family law attorney, I am not a mental health professional. So, I may have them use an expert.
What experts are generally involved in a child custody case, and what role do they serve?
The experts that are involved in a custody case are typically mental health professionals. They could be licensed marriage family therapists, LMFTs. They could have their PhDs and doctorates in child psychology.
There is no designation or title, but the most common expert we use is a California evidence code 730 evaluator. If the parties truly cannot reach an agreement on issues of legal custody, physical custody, and timeshare, there will be an appointment for a neutral evaluator who will collect evidence with respect to the child’s best interest and then provide a recommendation to the court.
That can be done in what’s called an emergency screening, when there is a concern regarding harm or imminent threat of harm to the child.
It can be done in what’s called a brief focused assessment, which is like an emergency screening, but it’s typically three times the amount of in-depth involvement, maybe even four times, and it could be an evaluation, which is something that can take six months or longer that will include hours and hours of interviews with each parent, a review of the entire docket, house visits, interviews with all collateral contacts, and other related work.
I passed over a very important expert, and that is the initial mediator. This is the person who is required, whether through family court services or privately, to work with the parties without counsel to see if we can reach an agreement.
What are your top tips to win a child custody case in California?
First, it’s knowing your audience, the judge; my opposition is not the opposing counsel. My approach is not to vilify or demonize the opposing party; instead I’m looking at the judge, always, and the judge’s role in applying the family code and case law to this child.
Think about it. The judge just already handled countless amount of cases last month, this week or even this morning where parties were pointing the fingers and yelling at each other, but not focusing on the child. As a result, the child suffers.
As such, all of my top tips focus on the child. Also, it is very important to rehabilitate the image that the other side is trying to portray, and that’s what I mean by winning a custody case.
Winning a custody case is an interesting way of putting it because you could win a custody case in that you’ve got the timeshare designation of custody you want, but you lost because the child who has suffered through the process. The child wants nothing more than Mom and Dad to be on the same page, even if Dad is a domestic violence perpetrator and even if Mom is a substance abuser; the child suffers when Mom and Dad are not on the same page.
I would phrase it as the top five tips to act in your child’s best interest and get the best results for your child are to read the books, take classes, work with the other parent, learn to let your child love the other parent, and learn to let your child understand the deficiencies of the other parent without overly influencing them and without the risk of them being harmed.
Going through that process always, always do the right thing for the child. Never involve the child.
One important thing. There’s truly a top tip. It’s not uncommon that a child will have a preference. You shouldn’t be the voice of that. The mom and dad should not be the voice. We need the child’s voice in court, and so it’s how we go about that without damaging the child.
One of the things that comes up is helping the parents who are going through a divorce. We all know that that’s a highly emotional, traumatic, and overwhelming time in their lives. A lot of times, because of that hurt, one or both parties kind of lose focus on what’s truly important and are focused on hurting the other parent.
Yes. Right.
Everything you said is about focusing on what’s in the child’s best interest, but what are you doing when you have the conflict of what your client is focused on when it isn’t necessarily what’s in the child’s best interest? How are you helping them to reframe, or what are you doing when there is that kind of conflict?
I’ve dealt with that on several occasions. It’s sad, number one and is why family law is a very difficult area of law. You have some of the best people on their worst behavior.
What I do is I sit them down with a mental health professional, and talk with them about how their conduct is damaging the child. I say that I see them in court by my side, nodding their head up and down when the court admonishes them and the other side, but behind closed doors and outside of court, they’re not getting the message.
I tell them the following. “I’m only in your life an hour every couple of days or so, and so I’m not there to control you on the outside. You need to work with what we call a custody coach to address these issues on a regular basis.”
They may need to go to a 16-week “parenting without conflict” class to address these issues. I had seen a case where a court said, “You’ve done your 52-week batterers intervention program, sir. You’re going to need to start it again. You’re doing another full 52 weeks because it obviously didn’t work.” That class addresses more than just anger management, but also custody-related issues.
But honestly, the sad reality is, sometimes there’s nothing you can do. It’s unfortunate and nobody gives up, but sometimes there’s nothing you can do.
How much does a child custody case typically cost?
It’s a function of three factors…facts, law, and dynamics.
I tell them, “It’s a complexity of facts, complexity of law, and then the dynamics, the motivation, cooperation, attitudes of the parties, counsel, and judge.” I said, “I can forecast some certainty through all of that, but the one area that I just cannot is custody.” It is very difficult to know how much a custody case will cost, if we’re talking financial impacts.
If we’re talking emotionally, who knows? If the parents are putting this child through this trauma of not being on the same page, when they bring the child into it and they don’t allow the child the freedom to love the other parent, that’s damaging psychologically, and there’s no price you can put on that.
Financially speaking, a custody case can cost anywhere from $5,000 to $100,000; it could be $200,000, but that is fairly rare.
I’m not proud of that type of case because I tell my clients, “Any dollar you give me, or any attorney, is a dollar that you’re taking from your child, and I would much rather, if there is conflict, that dollar to go to mental health professionals, resources, than a hired gun.”
California Child Custody FAQs
What is parental alienation?
Parental alienation, otherwise known as parental alienation syndrome, is a concept that’s been debunked by certain judiciary, but it’s the concept that one parent, or both parents, are unduly influencing the child and practicing restrictive gate-keeping by teaching the child to have adverse feelings towards the other parent. In other words, Johnny starts to hate Dad for no other reason, but that Mom wants the child to hate Dad.
At what age does a child’s preference matter in child custody cases? Is there a set age or is that subjective?
It’s subjective. The law is under family code section 3042 subsection A, and it discusses sufficient age and maturity.
Subsection B states that when the child is 14 or older, the child may address the court directly.
What counsel and the courts have done is have mashed those two sections together to believe that the sufficient age is around 14. However, practically speaking, I’ve seen it as young as six or eight.
How? Not in the actual words by the child, but under the issue of attachment and bonding; that is a way to demonstrate preference by a child of that age.
But, if a child is six and says, “I want to be with Mom,” an evaluator won’t give that as much weight. If the child is 14 saying that, an evaluator will. But if a child is having a really hard time at Dad’s and is screaming a lot, et cetera, that’s a way of voicing a preference.
It’s attachment and bonding. Let’s say if Dad was out of the picture for three years. He has a right to be back into the picture and he may demand a 50/50 custody. But that may not be the case because the child prefers to be with Mom due to the attachment and bonding that has occurred. It’s going to take some time to address that going forward.
What role does domestic violence play in a child custody case?
One of the most important enumerated factors under the family code, absent domestic violence and substance abuse, is frequent and continuing contact is the general presumption, and under family code section 3044A, if there is a finding of domestic violence against either parent or children. It is a presumption that it is not in the child’s best interest for the domestic violence perpetrator to have joint or sole physical legal custody.
In other words, if there’s a finding of domestic violence, the victim parent has sole legal and sole physical custody. So, it’s an extraordinarily important issue for the courts to address. You don’t need a finding of domestic violence for it still to be a relevant factor.
What should a mother or a father do if the other parent is abusive toward the children?
Number one, get the child into counseling. The voice of the child needs to be heard, and not just from mother or father.
Or, bring the child to a counselor, bring the child to a doctor; Bring the child to any mental or medical professional who can do an independent review, and a report to Child Protective Services (CPS).
Just be aware that Child Protective Services, or DFCS, Department of Family Child Services, is not perfect. Nothing is perfect in this world.
After the meeting, there should be an immediate emergency request for orders in the family court. We may also need to, perhaps, appoint minors counsel for the child so that it’s not mother’s advocate or father’s advocate, but an advocate for the child.
I have also seen claims of child endangerment against the non-offending parent.
A parent will say, “Well, I’m shy. I’m gun-shy going forward on this because in the past, the court has sanctioned me, or father has claimed that I am an alienator, and it was inclusive at CPS.”
But what will happen is if a father is abusive to the child, CPS may open up a case of child abuse against the father, but also child neglect and child endangerment against mother; I have had a case where CPS will take the child away from both parents and open a juvenile dependency case.
