Legal Center:  Children & Divorce

CHILD CUSTODY

by Aaron Dishon, Esq.

Few issues in dissolution of marriage are more emotionally charged than the issue of child custody.

The court is customarily charged with determining what is in the best interest of the child. In a contest between two parents, the outcome determinative question is whether it is in the best interest of the child to be placed with mom, or with dad primarily and what contact the child should have with the non-primary custodial parent.

In reaching its first custody order, generally the court will first consider the status quo. If the wheel is not broken, there will be little reason to fix it. For this reason it is important to establish a pattern of parenting and child sharing consistent with that which you, as buffered by the other parent, determine and ascertain is in the child's best interest. 

The court will generally assume that the pattern of conduct and sharing entertained and practiced by the parents prior to filing for divorce is at least a valid starting point. Although the pattern previously established may not be perfect, and may need adjustment, the court feels safe in adopting that plan because it is a plan which the parents have tacitly, if not expressly, previous agreed upon.

Psychological Evaluation

Frequently a psychological evaluation and more in depth study is conducted.

The psychological evaluator then submits each of the parents and perhaps the child or children to a battery of psychological tests as well as clinical observations. 

The determination is made first as to whether either parent suffers from any psychological dysfunction. Then, the psychologist will look into the history of the child's life and the parenting plan that has existed over time, again, giving heavy weight to the most recent effective parenting plan. 

The evaluator, still desiring to shake or rattle the child's life as little as possible attempts to project the existent circumstances into the future making minor alterations or suggestions. On the other hand, if there truly is good reason and a substantial basis for dramatic change, many psychologists will so recommend.

The Superior Court provides a mandatory mediation service, which assists all parents who have a dispute regarding custody and visitation. Attorneys are generally not allowed to be present during the custody and visitation mediation when conducted through the auspicious of the Superior Court. An attorney's involvement in the process is to assist the parent in becoming ready for the mediation appointment and focused on the best interest of the child or children. 

An experienced attorney can be of great assistance in the preparation for the mediation conference. Yet, the attorney's true contribution will be in formalizing any agreements reached and/or litigating any dispute unresolved through the mediation process.

Physical vs. Legal Custody 

People frequently ask about the difference between Physical and Legal Custody 

Physical custody:
Physical custody refers to that parent or parents who has the physical responsibility for the care of the child. Joint physical custody" means that each of the parents shall have significant periods of physical custody, although parents can share joint custody even if the timeshares are disproportionate, such as an alternate weekend schedule for one parent and the other parent having the rest of the time. 

Sole legal custody means that one parent clearly has the lions share of time, as well as usually responsibility. Oftentimes attorneys avoid the use of either sole or joint custody and use the term "primary physical custody" to designate the parent who has day-to day care of the child. California law does not have any designation known as primary physical custody, and this may cause problems under certain circumstances, such as in a move-away case. 

Legal Custody
Legal Custody refers to the parent/s who will have the decision-making authority relating to the health, education, and welfare of a child. Joint legal custody means that both parents have the authority to make decisions regarding the child’s health, education, welfare, religion, drivers license, etc. Sole legal custody means that one parent may make all of these decisions.


This Article Determining Child Custody was written by Aaron Dishon; Copyright Dishon & Block, APC.