Should child custody or visitation become a problem, the issue must first be submitted to Family Court Services or another mental health expert for mediation prior to court hearing. If the mediation fails, there are three ways of establishing in whose custody the best interest of the child will be served.
The first, and generally, the most ineffective, way to proceed in a child custody dispute is by simply bringing in all your friends, relatives, and neighbors to testify to how good a parent you are and how bad a parent your spouse is. This, at best, places evidence on the record as to your ability to parent. However, quite frankly, the court simply is not impressed with that type of presentation. The court would expect all of your friends, neighbors, and relatives to say good things about you and bad things about your former spouse. So all in all, proceeding in this method, you are really in a “coin toss.”
The second method by which to proceed is submitting the matter to Family Court Services. Family Court Services is a branch of the Superior Court and is comprised of several counselors who do extensive interviews and discussions with all parties involved, including the children, the parents, and anyone the parents think can shed light on the custody situation. We have no say in what mediator you will be assigned, so there is always a chance you will get a mediator you do not like. Furthermore, they are quite overworked and very often do not have the time to do a full and complete report. If money is available for a private mediation, we generally advise our clients to utilize that approach instead.
The third, and by far the best, but also by far the most expensive, approach is that of retaining an independent psychiatrist or clinical psychologist to do a review of the entire family unit. This professional would do extensive testing and/or interviewing in order to make a recommendation to the court. The advantage behind this is that you will have a very competent person working for you who has sufficient time to devote to the case. Hopefully, the recommendation would be in your favor. The disadvantage is that it is much more costly. Family Court Services is very inexpensive and a private professional charges between $125.00 to $175.00 per hour and would be looking to you for immediate payment of his or her bill, although you may eventually receive some reimbursement from the other side. A true custody battle will generally add $5,000.00 to $15,000.00 in professional fees, or more, to a normal case.
When all is weighed, I generally find this last alternative your best bet and it certainly will give you the best chance of winning, assuming that the professional recommends in your favor, which does not always happen.
Types of Custody
The legislature has declared that it is public policy of the State of California that both parents have as much contact with the minor child or children as possible. Thus, joint custody has come about, as well as very, very liberal visitation. Unless there is evidence warranting a contrary result, the court is going to award very liberal visitation to the non-custodial parent.
Since terminology is often legally and emotionally important, you must understand what is meant by various phrases with respect to the custody of your minor child/children. The legislature and courts have defined the various types of custodies as follows:
- Joint Legal Custody: Joint legal custody means that both parents share the right and responsibility to make decisions relating to the child’s health, education, and welfare.
- Sole Legal Custody: Sole legal custody means that one parent has the right and responsibility for making decisions relating to the child’s health, education, and welfare.
- Sole Physical Custody: Sole physical custody means that a child resides with and under the supervision of one parent subject to the court’s power to order visitation.
- Joint Physical Custody: Joint physical custody means that each of the parents shall have “significant periods” of physical custody. Joint physical custody must be shared in such a way as to assure the child of “frequent and continuing contact” with both parents.
- Divided Custody: Divided custody means that each parent has, on an alternating schedule, physical custody for a portion of the year.
- Split Custody: Split custody means that where there is more than one child, each parent has physical custody of one or more of the children. It is essential to understand that “joint physical custody” does not mean 50-50 time. It simply means that both parents shall have significant periods of physical custody. This can be 60-40, 70-30 or whatever.
