How to Win a Child Custody Case in California

Here are over 30 proven ways on how to win a child custody case

How to Win a Child Custody Case in California

This article is about how to win a child custody case in California. It is not about how to make false allegations, alienate a child or engage in other misconduct to win. We wrote this for good parents. A good parent is one with integrity. He or she focuses on the child's best interest. There must be a child-focused reason the other parent should not share equal or close to equal parenting time with the child or children.

We wrote this article differently

It is mostly in a bullet point format. We get right to the point. There is no fluff.

Let us get started.

How to win a child custody case in California

An introduction to winning a child custody case in California

What are the keys to winning any child custody case in California?

  1. A focus on the children’s best interest,
  2. Facts that support the claim the other parents is one of the following:
    1. Physically abusive against the other parent,
    2. Physically or emotionally abusive against the child,
    3. Neglectful in his or her care of the child,
    4. A threat to abduct the child,
    5. Unfit to care for the child due to habitual or continuous substance abuse, or
    6. Unfit to care for the child due to his or her associations with dangerous individuals or otherwise placing the child in dangerous situations, and
  3. Your credibility.

Is that all of them? No, it is not. The above are the most common.

Additional reading on child custody

The role of your courage and risk tolerance in winning a child custody case

  1. Have the courage to take the custody case to court, if it becomes necessary.
  2. Wanting to protect the children from an abusive, neglectful or unfit parent is not enough. You have to follow through.
  3. If the other parent disagrees with your position and there is no settlement, your case will proceed to court. Court means the judge makes the decision.
  4. Courage is not the lack of fear. Court can be scary. A skilled child custody lawyer will prepare you.

The role different people play in a California child custody case

Here are the roles the attorneys play in child custody litigation.

  1. Your attorney is your advocate. Advocate does not mean he or she is your puppet. It does not mean he or she will just amplify your position. Your attorney has the following roles:
    1. Objective evaluate your case,
    2. Gather evidence in support of your position, if there is such evidence,
    3. Build a strategy in collaboration with you, and
    4. If your position has merit, advocate your position in court.
      1. If your position does not have merit, your attorney should candidly share that fact with you.
  2. The other parent’s attorney is not your advocate. He or she is not your friend. He or she is the other parent’s advocate. Since many lawyers are unfortunately puppets or mouthpieces, do not expect him or her to evaluate the case objectively.
  3. The child’s attorney is an attorney appointed for the child to express the child’s wishes or investigate the issues.
  4. The family law judge makes the orders. Those orders may be the result of you and the other parent’s agreement. Those orders may be the result of you and the other parent not agreeing. Here is what the judge cares about:
    1. Admissible evidence in support of each parent’s position,
    2. A basis set forth in the Family Code that supports your position to limit the other parent’s parenting time and that of the other parent, and
    3. Your credibility and that of the other parent. Your credibility is a big part of how persuasive your position is. To quote the great Edward Murrow, "To be persuasive we must be believable; to be believable we must be credible; credible we must be truthful.”
  5. Court appointed experts investigate each parent’s claims. These investigators are usually one of the following:
    1. Court appointed, private child custody evaluators, also called 730 Evaluators for Evidence Code 730,
    2. Court appointed social workers who work at the court, or
    3. Other experts on select issues like an addiction expert to evaluate a parent’s substance abuse issue.

How to win a child custody case in California against a parent who frustrates your parenting time

Frustration of parenting time is an important factor. However, frustration of parenting time should be serious if it causes a child custody case to land in court.

Family Code 3040(a) states the following:

“(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020:

(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020, and shall not prefer a parent as custodian because of that parent’s sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order.”

There is more to Family Code 3044 than what we wrote, above. The part in bold is the part we wanted to emphasize.

Keys to winning a child custody case in California due to frustration of parenting time

  1. Document the other parent’s misconduct. Use text messages or emails to confirm what the parent has done and is doing.
    1. Write everything politely and with the knowledge the judge may read it one day. Do not make offensive comments or personal attacks. Focus on the child or children. Attempt to co-parent but also emphasize the other parent’s misconduct.
  2. Give the other parent a short window of time to do the right thing. Do not allow a status quo that limits your parenting time to continue.
  3. Hire a family law attorney early in the process.
  4. File the child custody papers early. You need court orders, not false promises or hope that things will somehow work.

Additional reading on frustration of parenting time

How to win a child custody case in California against a parent who alienates your child

Parental alienation is child abuse. Anyone who states differently is either:

  1. The person alienating the child, or
  2. Has never seen the damage alienation causes to a child’s mental state.

Keys to winning a child custody case in California against an alienating parent

  1. Document the other parent’s misconduct and be clear with the other parent he or she needs to stop.
  2. Have no patience for ongoing misconduct. If it does not immediately stop, hire an attorney and seek court intervention.
  3. Step into the court process with the expectation the issues will proceed to a court hearing. Negotiating with a parent who is committed to destroying your relationship with your children is like negotiating with a terrorist.
  4. Expect you will need to seek sole physical custody of the children.
  5. If the parental alienation has already taken hold, get into counseling with your affected children. You can obtain court orders for that.

Additional reading on parental alienation

How to win a child custody case in California due to domestic violence against you

Meaning of domestic violence

Family Code 6203 states:

“(a) For purposes of this act, “abuse” means any of the following:

(1) To intentionally or recklessly cause or attempt to cause bodily injury.

(2) Sexual assault.

(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.

(4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.

(b) Abuse is not limited to the actual infliction of physical injury or assault.”

Family Code 3044(a) states the following:

“(a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, or against the child or the child’s siblings, or against any person in subparagraph (C) of paragraph (1) of subdivision (b) of Section 3011 with whom the party has a relationship, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interests of the child, pursuant to Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence.”

There is more to this code section than what we wrote, above.

Keys to winning a child custody case in California due to domestic violence

  1. Document the evidence of physical abuse which includes the following:
    1. Police reports,
    2. Criminal convictions,
    3. Prior or current restraining orders,
    4. Photographs that show abuse, and
    5. Written admissions by the abusing parent.
      1. This may be text messages, emails, etc.
  2. Gather corroborating evidence of physical abuse which includes testimony from the following:
    1. Medical professionals,
    2. Witnesses to the abuse,
    3. Child or children, and
    4. Any other person the other parent has abused.

Additional reading on domestic violence and child custody

How to win a child custody case in California due to false allegations of abuse against you

Family Code 3027.5 states:

“(a) No parent shall be placed on supervised visitation, or be denied custody of or visitation with his or her child, and no custody or visitation rights shall be limited, solely because the parent (1) lawfully reported suspected sexual abuse of the child, (2) otherwise acted lawfully, based on a reasonable belief, to determine if his or her child was the victim of sexual abuse, or (3) sought treatment for the child from a licensed mental health professional for suspected sexual abuse.

(b) The court may order supervised visitation or limit a parent’s custody or visitation if the court finds substantial evidence that the parent, with the intent to interfere with the other parent’s lawful contact with the child, made a report of child sexual abuse, during a child custody proceeding or at any other time, that he or she knew was false at the time it was made. Any limitation of custody or visitation, including an order for supervised visitation, pursuant to this subdivision, or any statute regarding the making of a false child abuse report, shall be imposed only after the court has determined that the limitation is necessary to protect the health, safety, and welfare of the child, and the court has considered the state’s policy of assuring that children have frequent and continuing contact with both parents as declared in subdivision (b) of Section 3020.”

Keys to winning a child custody case in California due to false allegations of abuse

  1. Hire a family law attorney immediately. The moment you face false allegations, this is your most important step.
  2. With the help of your family law attorney, do the following:
    1. Document the false allegations. Your family law attorney can communicate with the other parent or his or her attorney.
    2. Hire a private investigator to start interviewing witnesses.
    3. If the other parent has reported the allegations to the police or social services, get a criminal law attorney involved immediately. He or she will work with your family law attorney.
    4. If you have current court orders the other parent is violating, consider whether you should file an immediate contempt action against the other parent.
    5. If you do not have court orders, commence a family law action. If you and the other parent are married, most people start with a divorce petition. If you and the other parent are not married, commence a parentage petition.
      1. After filing, proceed with filing and serving a request for order.
      2. Seek sole legal and sole physical custody.
        1. Seek professionally supervised visitation against the parent if he or she makes false allegations of child abuse.
    6. Take the other parent’s deposition. You want to flesh out the falsity of the allegations. A skilled child custody attorney will show through a deposition the false nature of the allegations.
    7. Set up the case for attorney’s fees against the other parent if he or she makes false allegations of abuse. Family Code 3027.1 provides for fees and costs against the other parent and others.

Additional reading on false allegations of abuse

How to win a child custody case in California due to substance abuse by the other parent

Family Code 3011 states, in part, the following:

“In making a determination of the best interests of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, and consistent with Section 3020, consider all of the following:

…(d) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this subdivision, “controlled substances” has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.”

Keys to winning a child custody case in California due to substance abuse

  1. Gather corroborating evidence of the substance abuse. This includes anything that shows the abuse. Arrests, criminal convictions, terminations from employment or discipline at employment due to substance abuse, medical or hospital records, etc. are all relevant.
  2. Interview witnesses and consider taking their deposition. Those who have personal knowledge of the substance abuse are helpful when a person denies the substance abuse.
  3. Take the substance abuser’s deposition once you have completed items 1 and 2.
  4. Addicts are unpredictable and unreliable. Therefore, do not take their promises as genuine. You need court orders. File the request for order and ask the court for the following:
    1. Substance abuse testing, whether that is alcohol and/or drugs, and
    2. A comprehensive assessment by an addiction expert.
  5. If the abuse is that of prescription drugs, request the other parent’s CURES report.
  6. Do not accept anything less than alcohol or drug testing. Promises without a court order mean nothing.
    1. The alcohol or drug test order should confirm a failure to take the test or a “diluted” test is the same thing as a positive test.
    2. The alcohol or drug test order should also include specific consequences of a positive test. Sometimes, it is appropriate to include an automatic suspension of parenting time.

Additional reading on substance abuse

How to win a child custody case in California due to a child’s preference

Family Code 3042 states:

“(a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.

(b) In addition to the requirements of subdivision (b) of Section 765 of the Evidence Code, the court shall control the examination of a child witness so as to protect the best interests of the child.

(c) If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interests. In that case, the court shall state its reasons for that finding on the record.

(d) Nothing in this section shall be interpreted to prevent a child who is less than 14 years of age from addressing the court regarding custody or visitation, if the court determines that is appropriate pursuant to the child’s best interests.

(e) If the court precludes the calling of any child as a witness, the court shall provide alternative means of obtaining input from the child and other information regarding the child’s preferences.

(f) To assist the court in determining whether the child wishes to express his or her preference or to provide other input regarding custody or visitation to the court, a minor’s counsel, an evaluator, an investigator, or a mediator who provides recommendations to the judge pursuant to Section 3183 shall indicate to the judge that the child wishes to address the court, or the judge may make that inquiry in the absence of that request. A party or a party’s attorney may also indicate to the judge that the child wishes to address the court or judge.

(g) Nothing in this section shall be construed to require the child to express to the court his or her preference or to provide other input regarding custody or visitation.

(h) The Judicial Council shall, no later than January 1, 2012, promulgate a rule of court establishing procedures for the examination of a child witness, and include guidelines on methods other than direct testimony for obtaining information or other input from the child regarding custody or visitation.

(i) The changes made to subdivisions (a) to (g), inclusive, by the act adding this subdivision shall become operative on January 1, 2012.”

Keys to winning a child custody case in California due to a child’s preference to live with you

  1. Do not pressure the child. If the evidence later shows the child expressed a preference because of the pressure you placed on him or her, you may lose parenting time.
  2. If the reasons are due to physical abuse, serious neglect, or substance abuse, file the request for order quickly. Consider whether an emergency application is appropriate.
    1. If the reason is unrelated to the above and the child is not in danger, play devil’s advocate. Ensure the reasons are sincere. You do not want to spend thousands of dollars only to find out you were wrong about the preference.
  3. Learn whether the judge assigned to your case prefers to speak with the child directly or whether he or she will appoint another person to speak with the child. The other person may be a lawyer for the child (called “minor’s counsel) or an internal court investigator.
  4. Confer with the other parent about the child’s choice. This will help you better understand what the other parent’s position is before you file the request for order. If the parent does not provide good reasons to oppose your request, your attorney can correspond with him or her. The correspondence can put the other parent on notice of your intent to seek attorney’s fees if the other parent unreasonably opposes the request.
  5. With older teenagers (15-17), build reasonable flexibility into the requested order.
  6. If the other parent falsely claims you are alienating the child, pressuring the child, etc., flesh out those false allegations by taking the other parent’s deposition. It is one thing to claim it. It is quite another to prove it.

Additional reading on a child's preference

Ready to discuss your child custody case?

Our family law firm represents clients in each of the seven Southern California counties. We are experienced child custody attorneys. We know what it takes to prepare a case for victory. We know how to win inside of a courtroom. If you want an objective evaluation of your situation to determine if your position has merit, contact us for an affordable strategy session. We have offices in Orange County and Los Angeles.

About the Author

B. Robert Farzad

B. Robert Farzad is the president of Farzad Family Law, APC. Mr. Farzad is actively involved in the firm's divorce and parentage ca...
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