In the last FAQ, we talked about whether a judge will make temporary child custody orders before the divorce is final. In this one, we will discuss how a family law judge makes orders on child custody, both temporary and final orders.
The children’s best interest is of critical importance
We might as well get the most important thing out-of-the-way first. The children’s best interest. It is everything in child custody cases. If you remember nothing more about how a court rules on custody and visitation, just remember the children’s best interest. What does that mean? I wish there was a mathematical formula I could give you but, just like parenting is not a science, child custody orders are not based on science either. Instead, your judge will be required to focus on the children’s health, safety, education and general welfare.
Does that sound pretty broad to you? It should because it is and family law courts are given wide discretion when determining what is and is not in the children’s best interest
The general list of what the court will focus on is:
- Age, gender, and stage of development of the child
- Child’s custody preference if the child is of sufficient age and maturity (typically 14 or older)
- Emotional, social, and educational needs of the child
- Health, welfare, and safety of the child
- Issues of spousal abuse in the divorce, physical, sexual or emotional abuse, drug or alcohol abuse
- Level of communication and cooperation between parents
- Parenting ability and psychological adjustment of each parent
- Quality of the parent-child relationships
- Parental support systems
- Cultural factors if they are relevant
The most common ways a family law judge will reach its temporary orders
1. Adopting the parents’ agreement: This is probably the most common way. Simply put, the mother and father come to an agreement and it is submitted to the court to become an order of the court. Once a parent’s agreement becomes a formal custody order, violation of it carries the same punishment as any court order, which could include fines and community service or jail.
2. The court could order an investigation by a lawyer for the children (called minor’s counsel), a private child custody evaluator (sometimes called a 730 child custody evaluator after California Evidence Code 730), an internal court investigation often called a CCI in Orange County or the court could wait the results of an external investigation by child protective services or a law-enforcement agency. If the court were to do any of these things, it would be because the court wants more information before making temporary orders. It is not uncommon for temporary orders to get to this level when there are serious allegations of abuse, neglect or substance abuse.
3. Formal court hearing: the court could make its temporary orders by putting on a hearing and listening to the testimony of the parents and any witnesses. Court hearings on temporary orders are really designed for the more serious custody cases where there is a significant difference between each parent’s factual or legal positions. The latter is uncommon because child custody law is not overly rigid in its application. The former is more common especially in cases where there has been a long-standing child custody status quo which is the subject of sharp agreement between the parents.
Once the court has made its temporary order for legal and physical custody and visitation, one of two things happen. The order is either memorialized by the court in something called a “minute order” (where the court clerk takes down everything that is ordered) and that will become the court order or one of the parents’s lawyers is asked to prepare the formal court order and submit it to the court for signature
How does the court determine the final child custody order in a divorce?
The final child custody order is similar to the temporary ones that we have discussed.
The major difference between a temporary order and the final one is that the final one is intended to be the custody order that will remain in effect unless there is a significant change in circumstances that justifies the court to modify it. When we refer to custody, we refer to physical and legal custody and not necessarily parenting time.
If the labels of custody are going to remain the same but one parent simply seeks more time or a parent wants the other parent to have less time, that does not automatically trigger the requirement to show a significant change of circumstances. In such a situation, the court can rely on the best interest standard when evaluating a child custody modification.
Final child custody orders can be obtained through the agreement of the parents which then become an order the court or through a formal court hearing called a trial. Just as the court has the ability to do for a temporary order, the court can employ its own investigators or experts for a recommendation.
Don’t stop now! We have more child custody FAQ for you! Get informed and if you have questions, please don’t hesitate to contact our experienced family law attorneys. We have also written a comprehensive page on child custody laws in California that will give you the in’s and out’s of California law and procedure.