Who Gets Custody Of Our Kids

While almost every aspect of the divorce process is emotionally charged, the issue of child custody is of particular significance to many parents. In these sorts of situations people often look for simple, concrete answers about the disposition of the issue of custody. Unfortunately, it is not so simple. Each child and each family is unique, and California law provides a large amount of discretion to judges so that they can make the decision that is in the best interests of the children. However, just because the answers are complex and highly fact-dependent does not mean there is no information to be had. Courts will follow similar procedures in each case and will look to the same factors in making their ultimate custody decision.



The Custody Process


The custody process ordinarily begins with a child custody “Request for Order.”  This is a  form request that allows a parent to provide a variety of basic information to the Court, explain what their desired custody situation is, and provide their reasoning for that desired custody arrangement. Once this Request for Order is filed, the court will assign parents a date for a mandatory mediation. The mediation involves both parents sitting down with a trained mediator, and attempting to resolve the issue of custody through collaborative negotiation rather than a competitive court battle. The court requires both parents to make a good faith effort to come to an arrangement with the mediator’s help before allowing the process to move into a court hearing.


If the parents do attempt good faith negotiations and are simply unable to reach an agreement on the custodial arrangement, then the case will proceed to a court hearing. In this hearing, the lawyers will present evidence and arguments to the judge to attempt to advocate for their client’s preferred custody arrangement. These hearings may also end up involving two other professionals, the child custody evaluator and minor’s counsel, depending on the types of issues involved.


A child custody evaluator is an objective professional, often a psychologist, whom the court calls in to perform an assessment of the familial situation. This assessment often involves examinations of the parents and children, as well as a review of pertinent documents. These sorts of assessments are most often used where one parent raises serious concerns like child abuse, substance abuse, or other improper parenting practices that could be detrimental to the child’s well-being.


The other professional who may enter into custody hearings is the minor’s counsel. The minor’s counsel is a court-appointed lawyer whose job is to represent the child and their interests throughout the proceedings. These lawyers are often appointed in cases that require some form of investigation or examination of the child, but do not rise to the level of needing a child custody evaluator. Cases in which the minor is old enough to express a preference about custody are some of the most common cases that see the appointment of a minor’s counsel.


Factors that the Court Considers


During the court hearing, the judge may consider a wide range of different factors when deciding on custody. The general guiding principle that the law provides is that custody decisions should be made with the best interests of the child in mind. This is a broad principle that encompasses many different considerations, but the court will probably look to the age of the child; who the primary parent has been; the relationships that the child has with each parent; sibling relationships; the current custody status quo; histories of child abuse, violence, or substance abuse; and the ability of both parents to provide proper care for the child, among other things.

If you have further questions about child custody or are considering filing for divorce, reach out to a California family law attorney today. Our team of skilled lawyers can help ensure that you and your interests are fully and fairly represented in court.