What do Judges look for in deciding custody and visitation cases?

In custody and visitation cases in California, the biggest consideration is the best interest of the child(ren). In deciding what is in a child’s best interest, the Court considers stability, frequent and continuing contact with both parents (if appropriate), and which parent is more likely to share the child. These three things are not the only thing the Court will consider because every case is different, but they weigh heavily in the Court’s decision.

It is important to remember there are two kinds of custody: legal custody and physical custody. Legal custody is the right a parent has to make decisions regarding a child’s health, safety, and welfare. This includes decisions about where a child will go to school and what doctor they will see. Physical custody is based on where the child will spend his or her time. There are different considerations for legal and physical custody, and it is important to understand the difference between the two. A lawyer can assist you in better understanding the difference between the two and how the Court makes orders on both.

How do the courts get the information the Judges need to make child custody decisions?

In San Diego, all parties must attend a Family Court Services (FCS) meditation prior to a hearing on child custody and visitation. This mediation is mandatory, and attorneys do not participate in the mediation. During mediation, a counselor from FCS will speak to both parties and may occasionally speak with the child and/or collateral contacts, such as therapists and Child Welfare Services employees. The FCS mediations are conducted jointly with both parents unless there are allegations of domestic violence.

The recommendations from FCS are given a lot of consideration by the judges deciding on child visitation and custody. It is imperative a party does well in mediation because overturning FCS mediation recommendations can be extremely difficult. During mediation, parties should remain calm and present the facts of their case in a logical and chronological manner. Parties should provide specific examples to the FCS counselor, highlighting why his or her parenting plan is in the best interest of the child.

What not to say in mediation

The FCS counselors are not interested in the parties’ financial situations and will not discuss child support issues. The counselors see child support and child custody/ visitation as two entirely separate issues.

Along the same lines, parties should refrain from using percentages to describe the parenting plan they are seeking. The counselors prefer to speak about schedules for a child and not “timeshare”. Parents should also be careful about referring to a child as “my child”. A child in a custody proceeding belongs to both parents. The counselors and the Courts want to see that parties are willing to work together and co-parent. A reference to “my child” implies a party is not interested in co-parenting or sharing the child.

Tips for making a child custody and visitation case more successful

In presenting a child custody and visitation case to the Courts, the Court wants to see a concise and clear recitation of why the plan a party is proposing is in the best interest of the child. A clear plan and request for specific custody and visitation orders is also extremely helpful. It shows the counselors at FCS and the Court that a party has put time and thought into making the specific request as opposed to just filing a motion with no clear goal or path to a successful parenting plan.

When filing a declaration with the Court or presenting a case at a hearing, the party who appears more credible will generally have better results. A party can establish credibility by providing specific examples highlighting why his or her proposal is in the best interest of the child. This means coming to the Court with specific dates and times or “stories” about the child or co-parenting as opposed to just telling the Court “I am the better parent.” Vague statements like this do not present well in FCS or in front of a judge.

Additionally, a parent should present to the FCS counselor and the judge that he or she wants to work with the other parent in parenting the child. It is extremely important a parent appears reasonable in his or her request and does not appear as though he or she is trying to cut the other parent out of the child’s life. The family court places a huge emphasis on frequent and continuing contact with both parents in custody and visitation cases.   

What can make one parent more “Fit” over the other

There are obviously situations where an equal parenting plan is not appropriate. In deciding whether an equal parenting plan is appropriate, the Court considers allegations of domestic violence, substance abuse, and child abuse. In cases where these claims are substantiated, the Court can order supervised visitation.

There are professional supervisors and, in some cases, non-professional supervisors. Orders for supervised visitation give the Courts the opportunity to allow a parent who cannot be alone with the child to have visitation. These situations are not ideal, but they ensure everyone remains safe while allowing a child to have an appropriate relationship with both parents.

In less extreme cases, the Court can make orders that allow a child more stability during the school week by allowing one parent to only have visitation during the week. This type of parenting plan is common when both parents reside in San Diego but live a significant distance apart. These types of orders are also common where one parent has a career requiring a large amount of travel. Children need stability in their schedules to be successful at school and the family courts place emphasis on that stability.

Can you refute custody orders once they are made?

Generally speaking, once a custody and visitation order is made by the judge, a significant change of circumstances is required to change the order. If the orders are made, there is the option to appeal, but to appeal a custody and visitation order, the appealing party must show the trial court abused its discretion in making the orders. This is extremely difficult, particularly in family law cases because each case is unique and there are not many black and white rules.

If a party does not agree with the orders made, he or she should keep notes and calendars to document why the orders made are not in the best interest of the child and how the child’s life is negatively impacted by the orders. Once enough time has passed, typically a minimum of 1 year, and the party can point to specific negative impacts on the child, they can file a motion to modify the orders. The Court will look for specific information about why the previous orders did not work and were not in the best interest of the child.

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