California law presumes that both parents should have a meaningful role in the major decisions that affect a child and frequent and continuing contact with the child. The Court’s focus in making custody of a child and visitation decisions is on the kid’s best interest.
Why then do so many mothers end up with the majority of the parenting time with the children? It depends, but often we see that one or more of these issues has put the father behind the “8-ball” when it comes to custody:
*History of domestic violence against the mother and/or the children
*History of substance abuse placing the child at risk
*Long absences from the child’s life
*Involvement of Child Protective Services and/or law enforcement
It is not surprising that the Court awards more parenting time to the mother when the father has these issues.
The focus of this article will be on father winning a child custody case when none of the issues above are in play. Chances are, if even one of the above issues applies to you, you will have a very difficult time winning custody unless the other parent has a similarly checkered past.
Let’s start with the law that the Court will apply when the Court awards custody at an initial custody hearing. Pursuant to Family Code Section 3020, the custody will be determined by the best interest standard, which has two main planks. The first plank is an analysis of the factors that affect the health, safety and welfare of the children. Here, the Court will be looking for evidence of the caretaking abilities of both parents and whether either parent has engaged in conduct that posed a risk to the child. Such conduct may be domestic violence against the other parent or one of the children of either parent, history of alcohol or substance abuse, or substantiated child abuse or neglect found against a parent by Child Protective Services.
The Court will be focused on the answers to these questions when determining the health, safety and welfare plank of a best interest analysis:
*How do you address the child’s needs, interests and activities?
*Does your work schedule allow you to address the child’s needs, interests and activities?
*Does your work schedule allow you to get the child to school on time?
*If you are unable to pick up the child on time, do you have others who can assist you?
*Does your work schedule allow you a reasonable opportunity to be with the child when school is not in session?
*Are you there to care for the child if he or she is sick?
*Are you there for the child’s medical and dental appointments?
*When the child is in your care, will the child’s homework be supervised?
The other plank evaluates which parent is more likely to provide frequent and continuing contact to the other parent. In short, the Court asks how these parents co-parent.
The Court will be looking at the answers to these questions:
*Are you supportive of the child’s relationship with the mother?
*Do you accommodate the other parent so that she can spend time with the child?
*Do you believe it is important to discuss important decisions involving the child with the mother?
Here is a summary of the law that Court will apply in a best interest analysis:
Family Code §3020
The California Legislature states it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further states that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.
The Legislature also states that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship.
Family Code §3011
When looking at a child’s best interests, the following will be considered:
- The health, safety, and welfare of the child.
- Any history of abuse by one parent or any other person seeking custody against any of the following:
(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
- As a prerequisite to considering allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence.
- The nature and amount of contact with both parents.
- 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.
In complex custody cases, the Court will often appoint a custody evaluator to prepare a report to the Court which recommends a parenting plan focused on the best interests of the children. Also known as a 730 or 3111 evaluation, this report will be considered by the Court at the time of the trial on custody and visitation. Typically, the evaluator will be a licensed psychologist or marriage and family therapist. In Orange County, the evaluation will be performed by court personnel or by a professional in private practice. The evaluator will interview both parents, children, significant others of the parents, other family members, friends, and school and medical professionals. If the evaluator is qualified, he or she will conduct psychological testing on both parents and the children to determine presence of mental health issues. Impressing the custody evaluator is key to success here. Here are some tips:
* Answer calls from the evaluator promptly,
*DON’T LIE
*Provide information requested by the evaluator
*Be on time for appointments
*Present documentation to the evaluator in an organized fashion
*Tell those that you want the evaluator to speak with to be alert for communications from the evaluator and to return the evaluator’s calls or e-mails promptly
*Dress for success, not for a day of yard work
*If a home study is part of the evaluation, here are some things to remember:
*Cleanliness is important.
*Secure any dangerous objects out of reach of minor children
*If you consume alcohol, consider placing locks on liquor cabinets or removing from home completely
*BEWARE: An evaluator may make an unannounced visit to your home
If you are seeking to modify an initial custody determination, the Court will be applying the same factors as above plus assessing whether a material change of circumstances has occurred since the time of the last order.
Contact Wilkinson & Finkbeiner today at 949-955-9155 for a free, confidential consultation with our Orange County child custody attorneys. You can also send us an email.
NOTE TO READER: We cautiously use the words “winning” custody because that is what many family law litigants often think is the terminology used. Our firm’s philosophy is that child custody and parenting time is not something to be won or lost. In most cases, we counsel our clients for long term success in establishing and maintaining the parental bond with their child. The law makes clear that both parents should be involved to the extent possible with rearing a child. Unfortunately, it is often the case that that separating parents view custody as a battle to be won or lost.