Top 5 Questions Parents Ask About California Child Custody Laws
Answers to legal and physical custody, best interest, preference, bias and more
Podcast Number 1: What parents want to know about California's custody laws
Welcome to our first podcast episode. In this episode, we cover the top 5 questions parents ask us about California's child custody laws. Those questions are about the following topics.
- The difference between legal and physical custody,
- What best interest of the child means as a standard to determine custody,
- Whether there is gender bias by California courts in custody cases,
- How a child's preference plays into custody decisions, and
- What a private child custody evaluation is and how it works.
We hope you enjoy the podcast. Press the play button to listen.
A transcript of it is directly below.
The following is the transcript of the podcast. We added some helpful links in the transcript if you want to learn more about the subject.
Hello and thank you for listening to the Farzad & Ochoa Family Law Podcast, where we cover California divorce and family law topics.
I am Robert Farzad.
Our law firm is Farzad & Ochoa Family Law Attorneys, LLP.
We are a family law firm with offices in Southern California. You can learn more about us by visiting farzadlaw.com.
Today's podcast is our first. It is titled "Top 5 Questions Parents Ask About California Child Custody Laws."
What we state in this podcast is not legal advice. If you need legal advice, please call or email us.
Let us get started.
Question number 1: What is the difference between legal custody and physical custody?
We will take legal custody, first.
Legal custody is about the decision-making process.
Parents who have joint legal custody are jointly involved in the decisions regarding their children.
This may be decisions about school or other education related activities, it may be about extracurricular activities, medical care and treatment and much more.
Joint legal custody does not automatically mean the parents must consent to everything. The terms of a joint legal custody order are important.
Some joint legal custody orders are specific and require the parents to not only confer but they must consent in writing before making any major decisions regarding the children.
Some joint legal custody orders do not require a written consent but only for the parents to confer with each other.
We believe the more specific joint legal custody orders are, the better.
Vague orders or those that are open-ended regarding legal custody only set up future disputes and even allegations that one parent violated the joint legal custody provisions.
Physical custody is not about decision making.
Physical custody is a label attached to the amount of parenting time the parents have with the children.
For example, if parents share equal parenting time, it is often said they have joint physical custody although joint physical custody does not always mean 50/50 parenting time.
If one parent has 80% of the parenting time, it can be said that parent has sole or primary custody.
Now, I realize the term sole can be confusing in this context.
When you hear the word sole you may think 100% but that is not how the law defines it.
That is why the word primary is more often used in the context of physical custody and parenting time.
We recommend that parents not get caught up on labels to physical custody.
It is more important the amount of parenting time be specific in child custody orders because outside of joint legal custody, parenting time is the most important consideration.
Question number 2: How does a court decide what custody is in the child's best interest?
Courts decide child custody by using the "child's best interest" standard.
But what does best interest mean?
Best interest focuses on a child's health, safety, education, and general welfare.
In other words, best interest focuses on a child's life inside and outside the home.
Best interest does not focus on micromanagement of that life. There is no perfect parent standard in California. The court does not favor one parent just because parenting styles may be different.
Instead, the court focuses on whether one or both parents can properly care for the child and, on the flip-side of that, whether either parent is a potential or actual danger to the child.
The most compelling evidence courts take into consideration on the issue of best interest if they are concerned about a parent are domestic violence, child abuse, substance abuse, threat of abduction of the child, child neglect and any other fact that concerns the court about a parent's parenting or ability to parent a child.
Question number 3: Does California law favor mothers or fathers in child custody cases?
It still surprises us how many parents believe that California courts favor mothers or fathers.
And this question is not limited to the State of California. We often hear that a particular county in California favors dads or moms.
California law explicitly states courts are not permitted to take gender into consideration. For a court to favor a mother or father because of gender is a serious violation of California law.
It is, by itself, grounds for a reversal of a court's decision.
Now, if a judge is biased toward a mother or father because of their gender, there is usually evidence of that by the judge making decisions that are contrary to the facts, to the law or both.
That is not to say every time the judge makes a bad decision, it must be a result of gender bias. However, gender bias has a way of showing itself by the judge ignoring important facts or placing great weight on irrelevant facts.
In my many years of experience practicing family law and litigating child custody cases, I have rarely seen what we thought was potential gender bias by a court.
Question number 4: When and how does a court take a child's preference for a custody arrangement into consideration?
Children do have a voice in child custody but not until they get older.
California law says that a child that is under the age of 14 can state a preference if the court believes listening to that child's preference is in the child's best interest. For practical purposes, our experience is this does not start until the child turns 12 or 13 but the code does not specify an age.
Once a child turns 14, the court will listen to the child's preference unless the court believes it is not in the child's best interest to do so.
There is a subtle difference between those, but it is an important one because once a child turns 14, the default is for the court to listen to the child absent circumstances that cause the court to do otherwise.
However, do not confuse listening to the child with doing what the child wants.
The court still has discretion regardless of the child's age and so long as they are under 18 to not follow the child's preference.
In other words, the court retains its broad discretion to make a child custody determination and subsequent court orders based on a child's best interest.
Parents often wonder how a court hears a child's preference. This can vary from one county to another.
The most common way courts hear a child's preference is through the appointment of a lawyer for the child. This is called a minor's counsel.
Minor's counsel communicates with the child and potentially others such as the parents or witnesses and communicates to the court the child's preference.
Minor's counsel does not make recommendations to the court. That was more common in the old days. But when the rules changed, it limited a minors counsel's role.
Question number 5: What is a private child custody evaluation?
Our final question is a common one when parents face what may be high conflict child custody cases.
Courts have the power to appoint a private child custody evaluator to make recommendations to the court regarding child custody. By child custody we include legal custody, physical custody, and parenting time.
Most private child custody evaluators are forensic psychologists
All child custody evaluators must meet minimum education and training requirements as well as ongoing education.
Although child custody evaluators make recommendations, a court is not obligated to follow those recommendations.
Family law judges have the discretion to take recommendations into consideration, and follow all of it, none of it or some of it.
Much of that depends on whether the judge believes the evaluator did a good job on the evaluation and made recommendations consistent with the child's best interest.
With rare exceptions, the parents are ordered to pay for the child custody evaluation
Which parent pays, whether one or both pay and what percentage each pays depends on each parent's financial situation.
Private child custody evaluations are rarely short
They can take many months before completion and may include interviewing the parents, children, teachers, therapists, medical providers, and they often involve reviewing records and performing psychological testing.
Parents also ask how the court decides whether to order a private child custody evaluation
Well, the first way is for the parents to agree to the evaluation and agree to the evaluator.
Experienced family law attorneys like those at our family law firm have worked with different evaluators and often have preferences.
If the parents cannot agree on whether an evaluation is necessary, the court can still order an evaluation over one or both parents' objections. If the parents agree the evaluation is necessary but cannot agree on who will conduct the evaluation, the court can appoint an evaluator that is on the court approved list.
Thank you for listening to our first podcast
Check back often as we intend to bring you more informative presentations on family law topics.
If you have a suggested California family law topic to cover, you can email me directly at Robert at farzadlaw dot com.
Until next time…
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