Thank you for visiting our in-depth guide to California child custody laws, written for married and unmarried mothers and fathers.
First, welcome. Second, sit back and relax. We have a lot to cover as we talk about the topic of child custody in detail. The first part of this in-depth guide on California child custody laws will walk you through what contested custody litigation is. We will discuss at the outset the relevance of status quo (parenting time, bonding, etc.) and what weight it should have on the initial and ongoing child custody orders? This guide is not legal advice and is not intended to apply to your specific situation. It is not a substitute for legal representation or advice. Please do not attempt to represent yourself. To contact us, please call us at any one of our three offices or complete the form at the end of this guide.
If rather than reading this article, you want to read our California Child Custody E-Book which has within its pages a wealth of information for mothers and fathers, click on the cover page below.
Okay, ready to keep reading? Let’s start.
California Child Custody Laws and Contested Custody Litigation
Why “contested”? If you and the other parent have the custody case settled, you probably wouldn’t be here. You are here so that tells us you are either expecting a contested case or you are in the middle of one. No problem. Here we go.
Is a contested child custody case a good idea?
The common conception is that contested custody litigation is not in the children’s best interest. There is a lot of truth to that statement, especially when divorce and child custody collide. If the parents can come to a reasonable settlement, they should. Why leave it to a family law judge, right?
It’s not that easy and we know that.
There are some instances where custody must be litigated to protect the best interests of the children. Your job as a parent is to determine whether the issues in your case merit litigation and ultimately a hearing or whether the focus should be on resolution of the case with the other parent. Don’t worry too much. We help with that too.
Before we delve into substantive child custody law, consider reviewing our articles on the topic of California child custody jurisdiction and specifically the “home state” application of the rules. After all, before we apply California’s laws, our courts must have the power to hear the case.
Evaluating a Child Custody Case in California
An experienced child custody attorney sits down with his or her client and evaluates the case objectively and with a focus on facts. Facts include a history of each parent’s relationship with the children up to the present date, evidence of abuse or neglect, a detailed understanding of any significant issues related to the children’s health, safety, education and general welfare, an evaluation of the current status quo custody arrangement and a breakdown of what the future should hold based on the children’s best interest.
In this comprehensive child custody guide, we will go through the most important factors both we and, in our opinion, the family law judge will look at in any custody and visitation case.
By the time you are done, I promise that you will have learned a lot about our laws and procedure and you will be ready for an intelligent and informed discussion with an experienced lawyer about your specific facts.
What is the custody and visitation status quo?
What “is” the status quo sometimes remains the status quo in a child custody case. In other words, if there has been a schedule that the parents have been following for any significant period of time and that has worked for the kids, courts will look to that status quo as the basis for any ongoing orders.
Does that mean the family law court will always keep things the same? Of course not (were you worried the answer was yes?). What it does mean however is that the court will want a good reason why the status quo should be changed.
This is important for both the custodial and noncustodial parent.
If you are the custodial parent who is facing a modification request, consider whether the status quo has been working and how you’re going to advocate to the court that things should say the same.
If you are the noncustodial parent, you should be prepared to explain to the court why the status quo is not consistent with the children’s best interest, especially if the status quo on the custody and visitation has been a temporary departure from how it used to be or is something which has been forced upon the children over your objections.
Noncustodial parents have more rights than they realize and they are not as stuck with the status quo as they may think.
Two common exceptions to “status quo” under California child custody laws
1. Temporary absence or relocation of a parent from the family residence.
Child custody laws in California do not permit a family law judge to consider one parent’s absence or relocation from the family residence so long as the absence or relocation was of a short duration and the parent who was absent demonstrated an interest in maintaining custody or visitation, the parent maintained or made reasonable efforts to maintain contact with the child and that parent’s behavior is not consistent with an intent to abandon the child.
Another exception to the status quo rule is if that absent parent was absent as a result of the other parent’s actual or threatened domestic violence or family violence.
This law exists to avoid temporary absences from being used against a parent unfairly when that temporary absence is not an important factor in the child’s best interest.
2. Military service and its impact on California child custody orders
Let’s start with a hypothetical.
Assume a father has joint (50/50) custody and parenting time. That father then goes into military service, active duty. The mother gets primary custody although no modifications to the court order was made. The child is simply left with the mother. The father serves his time in active duty and then returns.
The father wants to return custody and parenting time to how it was. The mother does not and now wants sole custody. What does the family court do? First, let’s discuss what a family court cannot do.
The family court cannot make a modification to custody or visitation solely on a parent’s absence or relocation or failure to comply with the order that resulted from active military service and deployment outside the State of California. The key word there is “solely.” So just because the father was gone does not mean he automatically loses joint custody and equal parenting time. If there are other reasons that affect a child’s best interest and the issue of custody and parenting time, that should get evaluated.
If a custody modification does need to be made (before the parent leaves) as a result of a parent’s military deployment, mobilization or temporary duty, the order will usually be temporary. That means the family law judge will review it when the soldier is back home and potentially reconsider the temporary custody order. Under some circumstances, there is even a presumption in effect that the order should go back to the way it was before deployment. However, like nearly everything else in California child custody law, the child’s best interest is of paramount importance when evaluating it.
Our state’s child custody laws, both codes and cases, are protective of military personnel. Serving in the military and carrying out the duty is not justification for depriving that parent of custody and the law gives flexibility to an absent parent in this area arguably more than any other.
A California Custody & Visitation Roadmap
Now that we have the introduction out of the way, here is a road map of the major issues you will likely see in California child custody cases. To make navigation easier for you or if you simply prefer to skip ahead, just click on any of the following bullet-point links and each will take you to the specific subject referenced.
- How do Family Courts deal with a child’s preference?
- Domestic Violence or child abuse and its impact on child custody
- Co-parenting and communication between parents
- Interfering with the parent-child relationship
- California’s best interests of the children standard
- Legal and physical custody
- Filing your child custody papers
- Mandatory mediation
- Abuse allegations
- Independent child custody evaluations
- Appointing minor’s counsel in child custody cases
- Court ordered counseling
- Medical and mental health record disclosure
- Substance abuse
- Abandonment of a child and impact on custody rulings
- Criminal convictions
- Threatened or actual abduction of children
You may be surprised that we discuss this so early but there is a very good reason for it.
Ever since California Family Code section 3042 went into effect in January of 2012, the child’s preference has become a more significant factor than ever before. We discuss Family Code section 3042 in this important linked article called Child’s Preference in Custody and the When and How of the Child’s Choice. Read it now or later but just make sure you read it. It lays out for you how the whole child preference issue works under the more recent California child custody law.
You may be asking, “is that really all it takes? A child can state what he or she wants and the court follows it?”
No. The Family Court is given discretion and of course issues such as the child’s maturity, parental influence, conditioning and alienation play a role in whether the court will listen to a child’s preference and acts on it.
A parent with a history of domestic violence or child abuse is going to face an uphill battle in seeking joint legal and joint physical custody. That is because California family law states that, under certain circumstances, a parent who has been found to have committed domestic violence must overcome a presumption that it is not in the children’s best interest for him or her to share joint custody.
We discuss domestic violence and abuse, the specific California child custody laws as well as its weight in contested cases in the linked article about the effect of domestic violence on a child custody cases
One of the foundational elements that a family law judge takes into consideration before making a decision is whether one parent is frustrating or preventing communication or refusing to engage in co-parenting.
The reason for this is simple – California laws favor both co-parenting and communication and expressly provide that a parent who is unwilling to engage in both may not be fit to have joint or primary custody.
You may be skeptical and even asking whether judges practice what the Family Code preaches? Yes, but be prepared to properly present your case and advocate your position with both the facts and the law because the judge is not your advocate and he or she is not going to do your job for you.
The unprepared and those who try to handle their own contested child custody cases face a difficult time in this regard.
Don’t be that parent. Get effective representation.
If co-parenting is not just possible, there are alternatives. Parallel parenting in high conflict child custody cases can be very effective and consistent with the children’s best interest.
We have written articles about subjects such as parental alienation in a California child custody case as well as the impact of false allegations of child abuse. However, it does not have to get to the point of actual alienation or abuse for the court to factor in unreasonable conduct by a parent and interference with the parent-child relationship.
If one parent has been uncooperative (and that phrase is not specifically defined by California law) and that has adversely affected or may adversely affect the children’s relationship with the other parent, the court will have to take such misconduct into consideration. The weight the court gives such behavior will depend on how serious the misconduct is.
This is good news for parents who communicate and co-parent and bad news for those that don’t.
Uncooperative parenting and interfering with the other parent’s rights may not only lead to a change in custody but a contempt action against the interfering parent. Court ordered joint legal custody and parenting time are not suggestions. They are mandates. Willfully violating a child custody order can lead to fines, community service and even jail time. We discuss contempt in family law cases on our Contempt of Court in Divorce page.
What does the child’s best interest mean under California child custody law?
It is the single most important factor in every single child custody case. It is called the child’s “best interest”. It is vague and broad but you better know its application if you intend to have any degree of success in your child custody case.
The purpose of the California best interest standard is to give the court broad discretion to order a custody and visitation plan that is consistent with the child’s health, safety, welfare and education.
That word “discretion” is very important. We call it the big “D” because it gives the Family Court reasonable latitude such that there is often not a strict right or wrong decision unless the judge abuses his or her discretion when making a ruling.
This court discretion when assessing the child’s best interest is also what makes child custody decisions difficult to successfully appeal. When an appellate court takes a look at a judge’s decision on what facts he or she gave less or more consideration, they generally have to find (with some exceptions of course) that the judge abused his or her discretion when evaluating and weighing the facts.
Bonding between the parent and child as a factor in California child custody cases
The level of emotional bonding that the children have with the parents is a strong consideration. Bonding isn’t just an issue of parenting time. Sure, the days a parent spends with the kids is important but bonding goes deeper. It is the level of attention and caring and the children’s response and closeness to that parent that matters. Parents who are not bonded with their children as a result of their own misconduct may face a tough time in custody and visitation cases but bonding isn’t a hard-line rule. Even if it has not been established, it can be and if it is weak, it can be strengthened.
Bonding is also a function of a child’s age, maturity, temperament and a parent’s personality and stability.
Let’s take a hypothetical to illustrate these points. Let’s assume you have a working dad who is at the job 60 or more hours per week. Assume further you have a stay-at-home mom and two children ages two and four. In such a situation, it is not uncommon for the children to be more bonded with the mother. That is simply a function of the mother spending more quality time with the young children than the father. Does that mean the dad in our hypothetical is out of luck? Of course not.
If these two go through a divorce, the father will have to make some adjustments to his schedule or his life to spend more quality time with the children – the emphasis being on the word quality. With that, the father will have an opportunity to build up the bonding between he and his children and, so long as the mother does not interfere with that bonding, the father should be able to enjoy that quality time with the kids within a very short period of time.
Gender, race, religion, sexual orientation, handicap and a parent’s financial status
There cannot be a preference for gender of one parent over another. California law simply forbids it.
The issue of race is obviously not a consideration.
In an article about religion, sexual orientation and physical handicap, we discussed what California child custody laws forbid a court to consider when making a decision except in very limited circumstances.
The family court also cannot consider as a sole or primary factor the financial position of the parents. Wealthy parents are not afforded any advantage over poor ones.
Educational choices in California child custody cases
Where will the child go to school? Will it be a public school or private one? Will the child be homeschooled?
In Orange County, courts generally do not become over involved in such decisions. The Court will not necessary “pick” a school. However, if the parents cannot agree and the Court is asked to make a decision between two schools at that time, what more commonly happens is the Court will designate one parent as the parent who should pick the school at issue. That doesn’t mean the parent make that choice forever.
Joint legal and joint physical custody orders under California child custody law
Joint physical custody gives both parents equal control over the child and the decisions related to him or her.
Joint physical custody is typically synonymous with a 50-50 parenting time arrangement but it is not required for there to be 50-50 parenting time for there to be joint physical custody. So long as each parent has significant periods of time with the children, joint physical custody is appropriate.
How much time amounts to joint? Based on the case law that exists as of today, it generally has to be more than 35% and typically 40% or more but take those percentages with a grain of salt. There are not yet any hard and fast rules regarding this issue.
Think of joint legal custody as a mandate to communicate and co-parent. Neither parent can make decisions that are important in a child’s life without involving the other parent and obtaining the other parent’s consent. These include decisions regarding health and medical, education, extracurricular activities, and anything that is of significance to the child. Even attendance in religious activities can be covered under a joint legal custody order.
California judicial council form 341(E) is very instructive in this regard. Read it to understand the breadth and scope of joint legal custody in California.
Parents will sometimes ask whether joint legal custody is an all or nothing proposition such that the family law judge cannot order one parent to have exclusive decision-making authority over one or more topics. The answer is no and the judge can make certain aspects of legal custody sole without making a complete order for sole legal custody. Our family law attorneys typically see this in the context of medical and/or educational decisions when one parent is far better equipped or the other parent is simply unfit to deal with such issues.
California’s public policy mandate of frequent and continuing contact with both parents in child custody cases
California child custody laws require that custody orders ensure the children have frequent and continuing contact with both parents and to share in the rights and responsibilities of raising the child. The exception to that rule is when such an order is not consistent with the child’s best interest.
This frequent and continuing contact rule is not specifically defined and does not have specific elements that the court must follow. Once again, the court is given discretion (notice how many times that word is used when referring to California child custody law?) to determine how much frequency and continuity should occur.
That however does not mean that the family law judge can do whatever he or she wants. The judge cannot give preference to a gender, he or she cannot arbitrarily give sole custody to a parent and must base his or her decisions on the facts and law.
There are of course exceptions and we have already discussed some of them. One of the most common is the impact of domestic violence.
Sole legal and physical child custody orders
Sole physical custody gives a parent the right to be the primary custodial and caretaker role. Sole physical custody orders do not necessarily take away all parenting time from the noncustodial parent. It is common for a sole physical custody order to be granted to one parent while visitation (parenting time) is ordered for the other.
Sole legal custody orders give one parent the exclusive right to make decisions concerning a child’s health, education and welfare. That doesn’t mean the parent who obtained sole legal custody gets to make all of the decisions at all times. That is because the parent who has visitation (but not custody) does still have supervisory responsibilities while the child is in his or her control.
Sole legal custody orders are rare and not favored by our laws unless the noncustodial parent has committed certain acts of misconduct or has otherwise abandoned the child to such an extent that he or she should not be involved in important decision-making concerning the child.
What is primary custody?
You’ve probably heard the term “primary” physical custody. Those words really don’t have a meaning under California family law although they are often used by lawyers and judges.
Primary physical custody is the jargon that is used when the term sole physical custody becomes uncomfortable or offensive to a parent and the custodial parent is willing not to attach the “sole” label to the custodial arrangement.
What are some common custody schedules that family law judges will order?
Common for joint physical custody:
- Week on and week off schedule
- 2-2-3, which comprises of Monday and Tuesday to parent A, Wednesday and Thursday to parent B, Friday, Saturday and Sunday to parent A and then a switch of that schedule the following week.
- Fixed 2-2-3, such that Monday and Tuesday goes to parent A, Wednesday and Thursday to parent B, and Friday, Saturday and Sunday alternate.
- An extended every other weekend schedule whereby parent A has two weekday overnights, an every other weekend schedule that goes from Thursday to Sunday or Monday and the parents equally share the summer.
Common for sole or primary physical custody:
- Every other weekend schedule from Friday to Sunday or Monday to parent A plus one or two weekday dinner visits that are non overnight.
Holidays and vacation:
Depending on the age of the children, whether or not they are in school and the level of bonding and attachment, holidays are traditionally split equally between the parents and each parent is afforded a set number of vacation days per year with the children.
We have published an extensive analysis of the Orange County Parenting Guidelines which break down these schedules and others by age of the children.
Will the family law court separate siblings in child custody cases?
California child custody laws favor the preservation of siblings’ relationship and bond with each other. Generally, significant evidence needs to be submitted to separate siblings in child custody cases.
One of the more interesting cases that has come down on this issue was ruled upon in the year 2004 and remains good law as of today. The case is called Marriage of Steiner and Hosseini. In that case, the Family Court ruled that the mother had so badly poisoned the relationship between the father and the older son that separating the siblings and giving the father custody of the younger son was possibly the only way to prevent that kind of alienation from occurring with the younger son.
The Steiner and Hosseini case is a good example of how parental alienation can destroy a parent-child relationship and highlights that in appropriate cases and with the right evidence, a Court can mitigate alienation and protect the children.
Ex Parte Child Custody Orders
Ex Parte (emergency) child custody requests for order are common in California. Unfortunately, most parents and far too many lawyers bring these emergency child custody requests without the proper basis in fact or law.
Emergency child custody requests are appropriate where there is a threat of child abduction, an actual abduction or other circumstances where the child is facing imminent risk of harm. Notice the word “imminent.” Notice the word “harm.”
Emergency child custody requests are not appropriate simply because a parent thinks that the court should address the issue immediately and when there is no threat of immediate harm to the child. In cases where the need for the order does not involve imminent risk of harm to the child but there is still an emergency that involves the need for a faster hearing, the family law court does have the power to shorten the time to set a hearing. In other words, the court can set a hearing date earlier than it usually would.
In cases that involve domestic violence, emergency child custody orders are appropriate when the domestic violence is of a recent origin or is part of a demonstrated and continuing pattern. Sexual abuse of a recent origin or part of a demonstrated and continuing pattern is also appropriate for emergency relief.
It is sometimes difficult to determine what is and is not an emergency. The advice of an experienced child custody lawyer is important because not only can emergency requests cost parents a lot of money in fees but bringing a frivolous emergency request may also damage a parent’s credibility with the family court.
Filing the Child Custody “Request for Order”
If it is not an emergency, then it starts with filing a child custody request for order, whether that is for the initial request or a modification of a child custody order. They used to be called “orders to show cause.” Requests for order are judicial council forms (preprinted forms where boxes are checked and information is provided) as well as (if you do it right) detailed declarations under penalty of perjury that lay out for the court what you want, why it is in the best interests of the children for you to get what you are asking of the family law court and all of the facts and evidence behind it.
It actually isn’t. In cases that involve factual disputes or even legal ones, a well drafted declaration is so important to giving your case the best chance for success. Don’t take attention to detail and good writing for granted. That is why our child custody attorneys are good at what they do.
Attendance and participation in mediation
So the custody request for order is filed and you now have a court date. Now what? Look closely and you will notice that you don’t just have a court date but you also have a mediation date. What is court ordered child custody mediation and how does it work?
Every contested California child custody and visitation case (not including domestic violence cases) must go through a mandatory court mediation process. The same rules apply in every single court within the State of California. Our laws do not provide an exception to this rule no matter how much a parent may think the matter cannot settle or that mediation may be a waste of time.
Typically, once you file your paperwork the court will assign a mediation date and you will be required to attend and participate in the mediation process.
Notice, we did not simply write “attend”. That is because good-faith participation in the mediation process is a requirement before the Family Court will take on and hear the custody case. A parent cannot simply sit in a mediation, with his or her arms folded and not participate
At the same time, this doesn’t mean that the parents have to reach an agreement in mediation. Good-faith disputes between parents regarding custody and parenting time are normal.
Mediation also does not need to be a one and you’re out process. If the parents were unable to resolve the matter in the first mediation session but made good progress, the mediator can set a second session before the court date for the parents to try again.
“So what happens if the other parent fails to show up?” First, the family law judge gets mad. Second chances are typical but third chances are not and if one parent refuses to attend or participate, that parent may not be given much of a voice at the child custody hearing.
Is a child custody mediation confidential?
Yes. The communication with the mediator is a confidential one and protected by California Evidence Code section 1040 and California Family Code 3177. There are exceptions which we will discuss below.
Are lawyers involved in the mediation process?
Generally, no. Especially in Orange County and Los Angeles, lawyers do not get involved and the parents attend mediation alone. Part of the reason is because mediation is not really a place for advocacy but for attempt at resolution.
Excluding lawyers does not mean that everyone else is also excluded from the process. In custody cases that involve domestic violence where the court has issued a restraining order, California law gives the victim a right to bring a “support person” with them to the mediation session. In Orange County, they will simply separate the parents.
Can the child custody mediator make a report to the family law judge?
Yes, where such a rule has been adopted by the local court. While we don’t see this in every case (and it is mostly the exception and not the rule), the mediator may report to the judge his or her recommendations based on the conversation that took place in a mediation session. However, before doing so, the mediator must provide a recommendation in writing to both parents and the lawyers.
How does the family court handle child abuse allegations?
Child abuse allegations are taken seriously, as they should be. The court has many options available to it when faced with an allegation of abuse to a child.
Typically, the allegation comes from one of the parents. When such an allegation is made, the court can do any of the following:
- 1. Handle the matter in a hearing and take testimony of the parties and witnesses. These hearings can be lengthy especially if the abuse has been ongoing for a significant period of time or the abuse is serious.
- 2. Refer the matter to a social services agency for investigation and reporting to the court. This is very common in Orange County Family Court. Typically, if there is a serious abuse allegation, child protective services has likely gotten involved and is conducting an investigation. Deference, sometimes too much, is given to the social services agency and a liaison of that agency reports to the court.
- 3. Order a child custody investigation, called a CCI (common in Orange County). This is an in-house investigation that is conducted by an employee of the court who has social services and investigative education and experience. The child custody investigator interviews the parents, witnesses and reviews any relevant documents. The investigator can also request documents and obtain them in anticipation of the court date. The investigator will then come to the court and make a report of his or her findings. The parents or the lawyers have an opportunity to conduct a cross-examination of the investigator.
- 4. Appoint a child custody evaluator to investigate the allegations and report back to the court with recommendations. It is important to note that when there are general allegations of child abuse made, the Family Court has wide discretion to appoint an evaluator. However, if the court determines there has been a serious allegation of child sexual abuse, the court must order an evaluation assessment or investigation pursuant to California Family Code 3118.
How does the family court determine the best interests of the child in light of abuse or neglect?
As we discussed, health, safety, education and welfare are the primary concerns of the family law court. The court therefore will look at a history of physical, sexual or psychological abuse by either parent.
Allegations of physical abuse, to withstand scrutiny, need to be more than “he said, she said.” In fact, the family law court may require substantial independent corroboration of physical abuse. This includes reports from social welfare agencies, medical facilities, law enforcement, and other places that can verify the nature or extent of the abuse.
California child custody laws require the court to make certain factual findings before it makes a determination. These laws exist because parents must be protected from false allegations of abuse whenever reasonable, as false allegations are very easy to make and could, at least on a temporary basis, deprive an innocent parent from custody and visitation.
What if a parent makes false allegations of child abuse?
We have written an extensive article about the subject of false allegations of abuse in child custody cases.
It happens way too often and, unfortunately, it is not punished enough.
Fortunately, family law has finally grown teeth in dealing with false child abuse and neglect cases. The law states that any witness, party (which typically includes just the father and mother but may also include others who were joined in the case, such as grandparents), party’s attorney who knowingly make a child abuse or neglect accusation that is false during a child custody proceeding may be monetarily sanctioned in a reasonable amount.
The sanction may include all of the costs that were incurred in defending against the false allegations and that includes the reasonable attorneys fees.
All of this is laid out in California Family Code section 3027.1.
Supervised visitation for false child sexual abuse allegations
The Family Court has the discretion to order supervised visitation or otherwise limit a parent’s custody and visitation if the court finds that there has been substantial evidence that the parent has made a report of child sexual abuse during the custody proceeding, or at any other time, and the parent knew the report was false.
The parent must have the intent to interfere with the other parent’s custodial rights although such an intent is all but assumed when dealing with knowingly false allegations of sexual abuse.
Appointment of a child custody evaluator
While they are typically called “730 evaluations” (named after California Evidence Code 730), that is a bit of a misnomer. So, what is a 730 evaluation? We explain the 730 evaluation process in detail within the guide linked in the previous sentence. In short, there are several statutes that permit independent child custody evaluations and one of them is section 730.
Regardless of the code sections, these child custody evaluations take place with a court-appointed evaluator who is generally on an approved court list.
Orange County has its list of court approved child custody evaluators and so does Los Angeles County.
The great majority of child custody evaluators are forensic psychologists although a Ph.D. is not necessary to be an evaluator.
The purpose of an evaluation is to do a thorough and objective analysis of the parents, the children as well as the facts that have led to the contested case.
Evaluations usually involves psychological testing of the parents, interviews with the parents, children and any collateral witnesses, review of documents and other information submitted by the parents or the lawyers, review of any medical or other psychiatric or psychological records as well as records from any law enforcement or social services agency, all of which culminate in a confidential report to the family court and the lawyers for consideration.
The forensic psychologist does not take the place of the judge. He or she does nothing more than make recommendations to the court. However, those recommendations are taken seriously and the court has the discretion to give the recommendations great weight.
Great weight however does not mean blindly following the recommendations and making them an order. There is a difference despite what some within the family law community may think.
When is a child custody evaluator appointed?
A contested child custody case starts with the filing of a request for order by one parent. Once the other parent has filed a responsive declaration (essentially an opposition) to the request for order, the family law court has the discretion to appoint an evaluator.
What issues does the evaluator cover?
An evaluator does not get to cover any and every issue he or she wants. His or her duties are governed by the court order, which means that the judge in its order will tell the evaluator what issues the court wants the evaluator to look into and report back to the court.
Usually though, the orders are broad and will cover issues such as a proposed parenting plan, which of course would include the specific schedule the evaluator recommends.
The child custody evaluator’s report.
At least 10 days before the contested child custody hearing, the court appointed evaluator must file with the court clerk and serve on the parents, or the parents’ lawyers if they are represented by counsel, his or her confidential report.
The confidentiality of the report is a significant factor in the process and closely regulated by California statutes.
If the parent is represented by a lawyer, he or she cannot have a copy of the report. The rules specifically forbid it, absent a further order of the court. What about the self-represented parent? The general rule is that a self-represented parent has a right to a copy of the report, absent an order of the court stating otherwise. Otherwise a self-represented parent would not be able to adequately represent him or herself at the hearing. There are exceptions to the rule. However, possession of that report does not authorize the parent to submit it to others and certainly not the children or witnesses to the proceeding. The parent who receives the report has the same duty to preserve its confidentiality as a lawyer does.
The California Family Code specifically states that law enforcement officers, judicial officers, court employees or a local Family Court facilitator as well as a lawyer appointed for the children are also entitled to the report.
If there is a violation of the confidentiality, the court has the discretion to monetarily sanction any person who made an unwarranted disclosure of the report.
Is the report admissible evidence?
Yes, but with a slight catch. It is very common in contested proceedings for the lawyers to stipulate that the report shall come into evidence without the necessity of the child custody evaluator testifying. While common, some thought should be given as to whether or not this is wise.
There are certain child custody matters that are so complex that stipulating to the admissibility of the report that neither the parents nor the lawyers have seen may complicate things more than just requiring the evaluator to show up and testify.
Even if the report is admitted into evidence, that does not in any way prevent either parent from subpoenaing and requiring the evaluator to come to court and be cross-examined on his or her recommendations and the basis for them. Of course, there is a cost with that and the parent issuing the subpoena generally has to bear the burden of the cost. For most evaluators, this cost will be in the thousands.
How is the custody evaluator paid?
Evaluators are paid professionals. One or both parents will be ordered to take the responsibility of payment. Typically, the court will look at all of the relevant circumstances in determining whether or not one or both parents should pay for the evaluator’s services. Allocating the cost depends on each parent’s need and ability to pay as well as the nature of the allegations (who is making the allegations, what evidence is there in support of it, etc).
Regardless of what the family court orders in advance, the court has the discretion to reallocate the costs of the evaluation. That means, at the end of the case or evaluation, the court can order one parent to reimburse the other parent, split it 50/50 or order one parent to pay for the entire cost of the evaluation.
How does the court appoint a lawyer for the children?
Back to the best interest standard, if the court determines that a lawyer (traditionally called “minor’s counsel”) should be appointed for the child or children, California child custody statutes give the court the discretion to make that order.
We see such appointments in cases where the issues are not significant enough to get a court ordered evaluator involved but still need an investigation which includes an interview with the children, review of documents and any witnesses.
Distinguishing between minor’s counsel and a custody evaluator is important. A minor’s counsel is not really in a position to do a psychological assessment of the situation and give a recommendation to the court based on such analysis. The lawyer appointed for the child is more of an investigator of the facts to determine how serious the issues are and what, if any, changes need to take place to the status quo custody and visitation arrangement.
Things that the family court takes into consideration include how contested or complex the issues are, what effect it is having on the children, and whether a lawyer appointed for the children could provide the court with the relevant information that it needs to make decisions.
Is minor’s counsel appropriate in a child preference case?
Minor’s counsel is probably most often used in child preference cases. When a child desires to have his or her preference heard, minor’s counsel is often appointed to present to the family law judge the child’s wishes.
Is minor’s counsel a good idea in abuse cases?
There are varying opinions as to whether or not minor’s counsel is appropriate in physical, emotional or sexual abuse cases. Our family law lawyers believe that the answer to this question largely depends on the individual facts of each case.
The more serious the abuse allegations are, the more a child custody evaluator (preferably an experienced psychologist) may be necessary. The seriousness of the abuse also includes how recent in time it is and how likely it is to be repeated, which requires an analysis of the parents’ history of abuse or neglect.
The attorney-client privilege applies to cases involving minor’s counsel
Because minor’s counsel has an attorney-client relationship with the child, all of the typical aspects of that relationship and the protections that go with it are included within the relationship. This includes attorney–client confidentiality. If the parent does not like what a minor’s counsel has to say, that parent cannot call the child’s lawyer as a witness in the case.
How is minor’s counsel paid?
How a minor’s counsel is paid and which parent pays for it is within the discretion of the court and dependent on both the issues (allegations, need for minor’s counsel, cooperation with him or her) as well as the needs and ability to pay of each parent. The court also has the discretion to fix the compensation of minor’s counsel so that it does not become an unreasonable financial burden on the parents.
Can the family law judge order a parent to attend counseling?
Yes. So long as the court has the proper statutory reasons for doing so, the court can require one parent, both parents or one or both parents and the child to participate in counseling with the appropriate professional. California Family Code section 3190 addresses this issue and does limit the counseling to outpatient services.
What are those requirements for the court to have the discretion to order counseling? Family Code section 3190 requires the dispute between the parents pose a substantial danger to the child’s best interest and for the court to deem the counseling order to be in the child’s best interest.
The duration of this counseling may be up to a one year period of time and the cost of the counseling, including its allocation, is well within the court’s discretion.
Does a parent have a right to privacy in his or her medical and mental health records in a contested child custody case?
The need for mental health and medical records sometimes collide with California child custody cases. If a parent’s mental health is an issue in the case, the court has the discretion to order that parent to submit to a mental examination. This is fairly unique in family law cases and is really reserved for those situations where a formal child custody evaluation is not the better choice because the court-appointed psychologist will often conduct a psychological examination of both parents.
Similarly, one parent’s medical or mental health records can become a contested issue in a child custody case. Here we run into a general rule and the exceptions to it.
As a general rule, a parent’s medical condition does not allow the other parent the right to obtain the medical records through the discovery process and use them in the custody case. The discovery process is a process in which information is formally gathered in the divorce and/or child custody litigation. It includes, as one example, subpoenas to medical providers. There are however exceptions.
Let’s assume for the sake of this discussion that the parent who is resisting production of the medical records is the father. If the father has directly made his medical or mental health condition an issue in the case, then he is generally deemed to have waived the doctor-patient or psychotherapist-patient privilege that protects disclosure of the records. In other words, the father cannot on the one hand make his medical condition an issue and, under the other, claim a right of privacy to prevent production of those records.
Making that medical condition an issue has to be direct. It is not enough that, using our hypothetical, the mother has made it an issue and the father has responded to the mother’s allegations.
Waiver of privacy rights or privilege
Like most privileges in California, the doctor-patient or psychiatric-patient privilege can be waived. Waiver can come in a variety of forms but one of the more common ones is by agreement.
Another form of waiver is having the other parent involved in the actual consultation or meeting with the doctor or therapist. So, for example, if the father in our hypothetical had the mother in the room when the discussion took place with the doctor about the father’s condition, that may act as a waiver of the doctor – patient privilege.
Will that happen every time? No. The rules are not that black and white and the nature and extent of the mother’s involvement in the communication and the necessity of her presence (versus convenience) would need to be explored.
What if the information is important to evaluation of the child custody case?
Another broad exception involves the need for the information actually outweighing the right to privacy. The court is mandated by California child custody statutes and case law to protect a child’s best interest. If one parent has a medical or mental health condition that has an impact on the child’s best interest, that impact and necessity for the information may outweigh any privacy interest that exists. This is very common in substance abuse cases including the abuse of prescription drugs for a known medical condition.
Even in such situations, the parent may still have a limited right of privacy in the manner the information is disclosed and to whom it is disclosed. For example, the judge can order only part of the records to be produced, the judge can review the records “in–camera,” which means the judge will be the only one that sees the records before you she makes a decision, or the judge can issue protective orders that keep dissemination of the records to the parties and lawyers or places other limitations on their production and use.
We’ve written an extensive article about this subject and specifically on the issue of drug and alcohol testing in child custody cases. We hope you enjoy reading that article.
Evidence that one parent is habitually or continually using illegal drugs, abusing alcohol or abusing controlled substances such as prescription medication does factor into the court’s decision-making process.
The fact a parent has abandoned his or her obligation to financially support the children can be taken into consideration when assessing the fitness of that parent as a custodial one. That means if a parent seeks to become the primary custodian of a child, his or her abandonment and failure to support the children is a factor the court can weigh when assessing the children’s best interest.
A parent’s conviction of certain crimes and its impact on custody and visitation.
Certain specific child abuse crimes, including but not limited to those that require registration as a sex offender, trigger a whole different standard pursuant to our state’s statutes.
In such situations the court must not award custody or unsupervised visitation to a convicted parent unless the court makes a finding that there is no significant risk to the child. California child custody laws are strict in such cases.
The laws regarding registration as a sex offender include those situations where the parent has residing in his or her house a registered sex offender as a result of a felony conviction, where the victim in that crime was a minor child, although not necessarily the minor child that is part of the case. California Family Code section 3030 states that this felony conviction shall be actual evidence that the child is at significant risk and a presumption is created that it is not in the child’s best interest to have unsupervised contact with this individual.
What about other crimes that are not child related?
California courts should not turn a blind eye to a parent’s criminal history and record. When a parent has a significant criminal history, including but not limited to one that involves violence or substance abuse, the family law judge has the discretion to take that into consideration when assessing the child’s best interest and whether or not the parent with the criminal history should receive joint legal and physical custody, or significant time with the children. However, such a finding does require that the parent pose a risk of harm to the child. It is not enough to point to a parent’s history and based on that alone conclude or assume that the parent is a danger to the child. Like most issues, the end result does depend greatly on the individual facts of the case.
Abduction and Family Code section 3048
California Family Code section 3048 addresses the issue of abduction. The court must consider the following factors when evaluating the risk:
- Has the parent previously taken the child away, or enticed, withheld or concealed the child in violation of the other parent’s custody and visitation rights?
- Does that parent lack strong ties to the State of California?
- Does that parent have strong familial, emotional or cultural ties to another state or another country?
- Does the parent have financial reasons to stay in California? Courts typically will look at the parent’s employment, both the nature and extent of it, and whether the parent can work from anywhere, is financially independent, or whether that employment is or is not strongly connected to the State of California.
- Has a parent engaged in activities that are consistent with planning a removal of the child. This can include selling a residence, terminating a lease, quitting a job, closing bank accounts or liquidating assets, applying for a passport, purchasing airline tickets or making other travel arrangements as well as related flight risk factors. It is rarely one factor or another. It is the culmination that matters.
- Does that parent have a history of parental noncooperation, child abuse or the domestic violence?
- Does a parent have a criminal record?
The focus of California Family Code 3048 and the cases that have interpreted it is to prevent the unlawful removal of children in violation of the other parent’s rights. It does not apply to situations where victims of violence, including domestic violence, escape their abusers with the children. However, simply making an allegation of domestic violence and taking a child does not shield that parent from our rules. The threat of violence or the violence itself had to be provable.
What is the California Family Law Court’s discretion when making orders against child abduction?
The court may:
- Order supervised visitation, which is typically professional as opposed to a family member or a friend,
- Require a parent to post a bond as a means of financial deterrent,
- Make orders that restrict the parent from removing the child from the State
- Place restrictions on travel,
- Require the parent to surrender travel documents such as a passport or anything else that the court deems is necessary,
- Prevent a parent from applying for a new or replacement password,
- Make orders that require the parent to notify a foreign consulate or embassy of the passport and travel restrictions,
- Require the parent to register the California custody order in the other state (or country, if the country will do so and will comply with California’s child custody laws),
- Make orders that require the traveling parent to provide an itinerary, copies of round-trip airline tickets, a list of all the addresses and phone numbers that the child can be reached and even an open airline ticket for the parent who did not travel in the event the child is not returned in violation of the court order.
The court may also include in the child custody order provisions that facilitate using the Uniform Child Custody Jurisdiction and Enforcement Act (called the UCCJEA) as well as the Hague Convention on the Civil Aspects of International Child abduction.
Regarding the issue of the Hague Convention, that can get complex depending on whether the other country is a signatory to the Hague Convention. That will be the subject of a future article where we will discuss in more detail the aspects of child abduction and family law cases and how the Hague Convention can assist in the recovery of the child.
Enjoy this in-depth look at California’s child custody laws?
We hope so. It’s why we wrote this for you. Please remember that you cannot obtain legal advice from reading pages like this, no matter how informative you think they may be. Legal advice can only come from speaking with a California lawyer, preferably one who is experienced in child custody and divorce and the issues you face. Every factual situation is unique and yours deserves an affordable strategy session with a skilled family law attorney.
For a general, overview of divorce in California and the step by step process from start to finish, check out our article called how to get a divorce in California.
Ready to chat about your specific case? Call us at (714) 937-1193.