Child Custody in Today’s Day and Age

Divorce can be complicated, especially when minor children are involved. Generally speaking, California law will favor joint legal and joint physical custody when both parents agree to that arrangement.  Joint legal custody refers to when both parents have the rights and responsibilities to make decisions regarding their children’s health, education and welfare (i.e. choice of children’s doctors, schooling, extracurricular activities, etc.).  Joint physical custody refers to the actual physical child sharing arrangement whereby the parents have equal, or somewhat equal, time with the children in their primary care.

Disputes Over Legal Custody and Physical Custody

If parents cannot agree on the legal and physical custody arrangement, then they will need to submit their evidence and arguments to the decisions of a judge. There are many factors that go into these decisions, such as maintaining continuity and stability in the children’s life as much as possible; ascertaining which parent is more likely to encourage a positive relationship with the other parent.   These factors all will be weighed by a judge when determining the custodial arrangement he or she believes is in your children’s best interests.  In short, the judge is given the widest discretion possible to design a parenting plan that is in a child’s best interests and may consider anything relevant and helpful in coming to his or her decisions. This can be daunting and nerve-racking…presenting cogent, cohesive arguments and substantial evidence to support those arguments is vital.  You should seek expert guidance to help you navigate the process successfully.

Here are some of the many important factors that go into child custody in today’s day and age. In any child custody case, there are two aspects to custody: legal custody and physical custody. Legal custody refers to the right to make major decisions for the child and physical custody refers to the place that the child lives. Traditionally, one parent would get custody while the other parent would get visitation rights. Here in California, joint custody is preferred by the courts - this means that both parents are involved in decision-making and both parents should have reasonable contact with the child. With that considered, an agreement has to be made to determine how exactly the child’s time will be divided between each parent and how decisions will be made. If both parties cannot determine a reasonable agreement together, then the judge will decide based off the best interest of the child.

Child’s Best Interest

As noted above, when parents cannot agree on custody of their children, decisions will be made by a judge based on the overarching standard – what is in the best interest of the children. Many factors go into making this decision, including the amount and type of contact with both parents, any history of domestic or child abuse, any drug or alcohol abuse, and ultimately the health, safety and welfare of the child.

Expert Witnesses

In today’s day and age, judges understand that relying solely on evidence or carefully crafted testimony isn’t always ideal, which is why it is important to consider hiring experts.  An expert witness can assist in many ways. They may be asked to examine your children to get a better understanding of the children's individual needs and communicate them to the court.  The expert could be tasked with analyzing the mental health of one or the other parents or other parties (e.g. a grandparent with custody) in the case, if the judge feels it is warranted based on the evidence presented. This use of an expert witness may serve to provide the court with information about the ability of an adult to parent, if that is brought into question. Some examples of expert witnesses include psychiatrists and psychologists who are able to testify based on expert knowledge in their particular field that is important to the case.  Although, any person with specialized knowledge about a relevant issue in a case can testify as an expert witness. Formulating a plan with an experienced attorney is an advisable first step in deciding on the use of experts.

Lay (Non-Expert) Witnesses

While hiring expert witnesses to testify in your child custody case may be advisable, so is evaluating the use of non-expert witnesses. Some examples of these are family members who are hands on in the care of the child, teachers, family friends, neighbors, etc. We often call these types of witnesses “percipient” witnesses, or witnesses that have perceived something that may be relevant and helpful to the court. These witnesses may help provide personal observations that supports that you are an involved parent, or a child is safe in your care. As important as it is to seek out these types of witnesses, it is equally important to vet them before bringing them into court to testify.  We have lots of in-depth experience in making these assessments with our clients.

Moving out of State (The “Move away” Case)

The law on moving out of state (or even moving out of San Diego County) is complicated and ever evolving.  Generally, if you have permanent order for sole physical custody can move away with the children unless the other parent can show that the move would harm the children or significantly harm the relationship with the non-moving parent. If the parents have joint physical custody of the children and the other parent does not want the child to move, the parent that wants to move with the children must show the court that the move is in the best interest of the children. But it is not always clear whether a custody order is permanent or temporary, so what the law requires may be different in your case. Consulting an experienced family law specialist is essential.

When ruling on a move, California courts will need to consider many factors and may even appoint an expert to do an in-depth custody evaluation to dig deeper into all of the circumstances of the case.  For example, the court will want to evaluate evidence as it relates to: how the proposed move will allow for maintaining stability and continuity in the current custodial arrangement, distance of the move, economic considerations due to the distance of the move, the ability of the parents to communicate and cooperate effectively and their willingness to put the children’s interest above their individual interests, and many other factors. Every move-away case is different, which is why it is so important to consult with an experienced San Diego divorce attorney to help you evaluate and decide if moving out of state with your family is a viable option.

Child custody cases can be very complicated due to the many factors involved. It is incredibly important to remember that the decision should ultimately be made based on what is in the best interest of the child. Often that means putting your personal desires and conveniences to the side.  At the end of the day, you should strive for what is best for your child and more often than not, that means some degree of joint custody. If you feel that the other person is not fit to be a parent, or the environment they live in is not safe for your child, you need to be well prepared to prove your case. If you are preparing for a child custody case or you have questions about the process, let’s talk. Our team is here to support you in any way possible and we would love to set up your private consultation today.