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Child Custody: Frequently Asked Questions

Posted on November 4th, 2014

Do I Need an Attorney to Help me Fight for Custody?

There are numerous ways to fight for custody:

  • Retain an Attorney
  • Hire a Paralegal
  • Represent yourself (proper)

Representing yourself is very risky.  Not only do you not know the law, but you will be held to the same standard as an attorney. The problem with representing yourself is that once a decision is made in your case, the process to rectify the mistake, (motion to set aside or appeal) is very difficult.

If you hire a paralegal to represent you, they can only assist you in preparing the necessary paperwork.  Paralegals cannot give you any legal advice, though many will try.

When you retain a Los Angeles family law attorney, you can feel confident that your case will be handled by an individual who has an in-depth understanding of the laws that affect your parental rights and the future of your family.

How Can an Attorney Help Mediate the Terms of Custody if My Ex and I Can’t be Civil?

An attorney can serve as an unbiased 3rd party who understands the laws and rules of the Court and assist you and your co-parenting partner in creating a child custody and visitation schedule that is fair to both parents.

An attorney mediator will help you identify the strengths of your family and help determine a plan that is in the best interests of your child.

The attorney-mediator will be neutral and they will NOT be representing you or your co-parenting partner.  The attorney mediator’s purpose is to serve as a peacekeeper, someone who is there for the sole purpose of assisting you and your co-parenting partner in coming to a peaceful custody agreement that is fair and reasonable.

Once an agreement is reached, the attorney-mediator will assist you in preparing the official custody agreement, which can become a court order if you choose and will thereafter be enforceable by the Court.

What is the Legal Process Involved in Arranging for Child Custody?

To begin the legal process for filing for child custody, you or your co-parenting partner must file the necessary paperwork to properly request that the Court’s assistance.

If you already have a family law case, you will already have a case number and will be filing a Request for Order (RFO).

If you are beginning your family law case for the very first time and do not currently have a case number, you will need to file the necessary paperwork to obtain a case number and then file your Request for Order simultaneously, or after you obtain a case number.

Most courthouses have a self-help center that can assist you with beginning the steps for filing for custody.  You can look online or call your local courthouse to determine if these services are available in your area. A Los Angeles child custody attorney can also assist you in beginning this process and filing the Request for Order.

For every child custody/visitation Request for Order, you and your co-parenting counselor will be required by the Court to attend mandatory mediation.  Normally, this mediation appointment will be given to your after you file your Request for Order and will take place before your hearing date.  The appointment will be given to you and will take place at the Courthouse. The mediator will assist both parents in trying to resolve their custody dispute and create a binding court order if a resolution is reached.

What Factors Determine Levels of Custody?

California courts normally make child custody decisions based on the “best interests of the child” standard.

The Judge uses this “best interests of the child” standard to determine a schedule for how the parents will co-parent together and share time with their children.

The gender of the parent does not give one parent special preference or a greater time-share with the child.    The Court cannot use a parent’s gender as a determining factor for basing its a custodial decision.

In California family law, the “child’s best interest standard” is separated into two specific considerations:

  • The health, safety, and welfare of the child
  • The frequent and continuing contact with both parents.

Other Factors

In addition to these two specific and most important considerations, the Court can also take into consideration other relevant circumstances or factors involved in each unique family.

Health and Safety

The Court gives this factor great weight.  For example, if a child suffers from a severe disability or has other ailments or impairments, the Court may look to factors such as which parent has a schedule that can accommodate a disabled child or where the child will be able to receive the best health care and services.

Another example, Judges cannot grant custody to a parent, if a child was born with birth defects because of that parent’s prenatal drug usage.  The previous drug usage (pre-natal or otherwise) is a heavy factor that is extremely relevant to a child’s health and safety. If there is a risk or history of domestic violence, sexual or physical abuse, the Court cannot grant unsupervised visitation in most cases unless the Court finds that the risk or history no longer exists.

Child’s Preference

In California, the law does not state which age Courts will give deference to a child’s own preference.  However, children can submit a declaration or give live testimony in Court, if they are able to write coherently and are mature enough to make an educated decision in regards to their own custody.

Co-Parenting Skills

A parent that conveys a desire to support frequent and continuing contact between the other parent and their child, is given great weight in determining custody and visitation.

A parent who makes disparaging comments does not cooperate in co-parenting and alienates the other parent is looked at poorly by a Judge and weighs greatly in child custody decisions.

False allegations of abuse made by one parent made against another parent are taken very seriously by California Courts.

Ensuring Stability and Continuity

California Courts look highly upon a parent who seeks to ensure a stable living environment for their child.  This includes working to maintain continuity in their child’s life such as established patterns of care and ensuring that sibling bonds are maintained.

What are the Main Types of Child Custody?

There are two different types of custody:

  • Legal
  • Physical

Custody can be shared jointly in both legal and physical custody. Legal custody includes a parent’s ability to discuss a child’s health, education, safety, and welfare. Physical custody involves where the child physically stays each night.

Joint physical custody is easily presented as a 50/50 child custody schedule. However, joint physical custody may not actually equate to that amount of time. It just involves each parent having a significant period of a custodial timeshare with the child.

Joint legal custody is awarded in most cases, but Courts who award joint legal custody do not have to also order joint physical custody. Although California Courts have wide discretion in granting custody based on the child’s best interests,  California public policy favors granting both joint physical and legal custody.

If parents are able to decide and agree upon a parenting plan that is in their child’s best interests themselves, it is always better to do so. California law requires parents to attend mediation prior to the date of their hearing to see if they can agree upon a parenting plan.  If the parents are not able to agree upon a schedule, a Judge will decide a parenting plan for the child using the “best interest of the child” standard.

How do I Prove my Ex is Unfit to be a Parent?

In instances where you would like to tell the Court that your child’s father or mother is unfit to be a parent, it is imperative that you do so by providing substantial and credible evidence of your allegations.

You must provide credible evidence such as witness declarations and/or testimony, expert declarations and/or testimony, credible evidence such as police and medical reports, criminal records, phone records, and photos, etc.

The fact that you feel that your previous partner is an unfit parent is not enough.  There must be enough evidence to satisfy your burden of proof and prove to the Court that your child’s father or mother is actually unfit.

In What Situations does the Child Choose Where they Want to Live?

In California, the law does not state which age Courts will give deference to a child’s own preference. However, children can submit a declaration or give live testimony in Court, if they are able to write coherently and are mature enough to make an educated decision in regards to their own custody.

In the past, by common practice, the age has been around age 14 or 15 years old. Depending on the Judge, there are some instances where courts will appoint minor’s counsel. The child will not attend Court hearings, but their attorney will meet with them beforehand and either state their preferences or state what has occurred in their lives since the last hearing.