Child Custody & Visitation Lawyer
Our family law firm considers issues regarding custody and visitation of minor children the most important ones a separated family will have to resolve. It is made more difficult by the fact that the California Legislature has tied child support to a parents visitation percentage. This sometimes creates the appearance that a custody battle is in fact a battle for child support. Our firm does not agree with modifying visitation for the sole purpose of changing one’s child support obligation. However, our firm does has the philosophical view that all good parents should have equal access to their minor children. We will do everything in our power to get you the most favorable ruling regarding child custody and visitation.
Custody is defined in the Family Code as either Joint Legal Custody (see Family Code § 3003), Joint Physical Custody (see Family Code § 3004), Sole Legal Custody (see Family Code § 3006), and Sole Physical Custody (see Family Code § 3007). As a practical matter, no parent cares what their custodial arrangement is called, but every good parent is concerned with the ability to make decisions regarding their minor child’s health, education, and welfare. Good parents also wish for custodial arrangements allowing both to have frequent and continuous contact.
When parents go through a marriage dissolution or divorce (or a parentage action if the parents were never married), the most important custodial orders are the initial custody orders issued by the court. The first custodial orders are so important because after it they are established, it is time consuming and often expensive to make substantial modifications. The general guideline is for the court to assume the status quo that the parties developed on their own, however, the court is not bound by that standard.
Standards to Determine Child Custody
The main and most important standard the court utilizes to determine custody of minor children is based on the best interest of the minor children (see Family Code § 3011). Health, safety, and welfare of a child are the court’s primary concerns in determining what is any child’s best interest (see Family Code § 3020).
Another major issue for courts is when domestic violence is at issue in a case. If a court makes a finding that either parent has committed an act of domestic violence, a presumption then goes into effect that an award of sole or joint physical or legal custody of a child to a parent who has perpetrated domestic violence is detrimental to the best interests of the minor children (see Family Code § 3044). This presumption may only be rebutted by a preponderance of the evidence, meaning that the party is bound by the presumption until sufficient evidence can be presented to the court proving that it would be in children’s best interest for a custody modification. (See Domestic Violence by clicking here).
Based on the above statutes, the court will apply the facts of a particular case to the law and make orders regarding an initial custodial plan.
Other Methods to Determine Best Interest
The court, either by noticed motion by one party or on its own motion, can appoint a Minor’s Counsel, which is an attorney that specifically represents a child in a case. As with an attorney representing a parent, the Minor’s Counsel would be able to have private and privileged conversations with the child, and be able to convey to the court both a child’s preference for custody, as well as give an opinion as to what is in a child’s best interest.
In certain cases, the court may order what is commonly referred to as an Evidence Code § 730 evaluation. This is a process by which the court appoints its own expert to gather facts, interview children, teachers, parents, etc., and then prepare a written report as to what is actually going on in a case rather than relying solely on the testimony of either parent. After reviewing the report, as well as hearing testimony from its expert, the court can then make an order that it believes to be in the best interest of the children.
Similar to a 730 evaluation, a court may order less time consuming and less expense Child Custody Investigation (CCI). This can be a partial or a full CCI, but either are far less extensive than an Evidence Code § 730 evaluation.
When parents cannot come to an agreement regarding custody issues on their own, the court may calendar an evidentiary hearing. This is an opportunity for the court to make a custody decision not based on the parties written declarations alone, but on their live testimony. This is helpful, as it allows the court to observe a parent’s demeanor, tone of voice, physical appearance, and how a parent generally carries himself or herself. Where the court may have ordered one way based on the written declarations alone, such live testimony may be powerful enough to alter the courts ultimate decision on a custody order if the court determines that one party less credible in person than on paper.
Sometimes the court may require therapy, monitored communication, reunification, anger management, parenting classes, or impose other conditions prior to making or in conjunction with custody orders.
Post Judgment Modification
A Post Judgment Modification is a modification to custodial orders after a Judgment has been entered. Before the court will modify a custodial arrangement, two elements must be met. First, the party wishing to modify the custodial orders must be able to prove that there has been a substantial change in circumstances. By way of example, this could be proven by the fact that one parent intends to move to a location that would significantly alter a child’s day-to-day life, an act of domestic violence, or a child has matured enough for the court to consider the child’s own preference. Second, the party wishing to modify must also prove that the modification would be in a child’s best interest. The court will deny any request to change where both elements are not proven.
For divorce or family law help in Orange County, California, and to obtain a child custody lawyer, contact the Law Office of André J. Ausseresses, APC today.
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