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During a divorce or paternity case, or at any time after a judgment is entered, a court has the power to make orders in the area of child custody and visitation for the minor children of the relationship.  Generally, stepchildren and grandchildren are not included, although, there are exceptions.

There are certain jurisdictional requirements that will give the court power to make child custody and visitation orders.  Jurisdiction can be extremely complicated and require an in depth detailed analysis and presentation of evidence.

Child custody involves two types:  legal and physical.  Legal and physical custody of child can be joint (to both parents/guardians) or sole.  Legal custody generally involves a parent having the power to make the important life decisions for the children, most often involving medical reasons and education.  Physical custody generally involves which parent the children should live with primarily.  Visitation is the parenting time the children will spend with the non-custodial parent, including the regular schedule, holidays, and vacations.  These orders are not awarded by the court until one of the parents files a request for order, or the parties prepare a written agreement (prepared in a specific manner) and file it with the court.

Child custody decisions are typically decided by the court that it determines are in the child’s best interest.  Part of the “best interest of the child” analysis mandates that the court consider the child’s health, safety, and welfare, history of physical abuse, contact with the parents, maintaining frequent and continuing contact with each parent, stability and continuity of environment (i.e., primary caretaker), separation of siblings, and child preference on custody arrangement.  The court is prohibited from making custody orders based on the gender of the parent.  Parties must file declarations, and other evidence, are filed in support of the request for order, or the opposing responses, to assist the court in making its initial decision.  These declarations must contain admissible evidence based on personal knowledge, unless the testimony is by an expert.

In cases where child custody is contested, intense litigation can occur.  The parties will always be required to attend mediation (court provided or private), or now known as Child Custody Recommending Counselor, before the court makes any custody or visitation orders.  The goal of mediation is to reduce the acrimony and assist the parents in reaching custody and visitation agreements.  Reaching agreements is almost always welcomed by the court.  In some counties, the mediators will prepare written reports and make specific custody and visitation recommendations to the court.  This makes it very important that litigants are well prepared prior to attending mediation.  You should know how to present yourself and be prepared to offer age appropriate parenting plans to resolve conflicts.

If the custody issues are complex, a mediator, the court, or the parties, may request that a child custody or psychological evaluation occur.  These evaluations are highly complicated and can be expensive.  But, in some cases these evaluations are necessary.  The evaluator will make specific custody and visitation recommendations to the court.

If there are allegations by that involve the habitual and continual use of illegal drugs or the abuse of alcohol, a court may order a substance abuse evaluation.  Proposition 215 (Compassionate Use Act) and child custody decisions are finding their way into child custody litigations more often.  There is also a body of law that governs when a judge has the authority to order that a party undertake drug testing.  Drug and alcohol abuse cases are complicated, expensive, and could be time consuming – addressing the issues correctly from the beginning is crucial.  

It is crucial to provide the evaluator or mediator with the information that is necessary to understanding any custody related concerns and with input that clearly identifies your request. 

Another type of custody decision might involve a parent’s request to move the child from the jurisdiction.  Move-away cases are complex and involve a detailed factual and legal analysis.  Often times move-away cases are analyzed in a child custody evaluation.  The legal standards of proof, and presumptions, are important and different in each case depending on the facts.  Child abduction occurs when one parent willfully removes the child and disrupts the custody orders.  If the child is removed from the United States, the Hague Convention will govern the analysis for the alleged unlawful removal. A visitation order must not be based on the payment (or non payment) of child support, lifestyle, sexual preference, or religious belief, and must be reasonable based on all the circumstances.  California law has special provisions that allow for grandparent visitation, and in some cases, for custody of children. 

If you are having issues with child custody or visitation, or have been served with any related legal documents, do not hesitate and immediately contact Singer & Associates to set up a consultation to better understand your situation.

Each case has unique facts and circumstances and this area of law is always changing.  Readers are encouraged to seek independent legal advice regarding their individual situation and legal issues.  Contact the attorney’s of Singer & Associate Law Office to set up a consultation.