II. COMMENCING OR DEFENDING AN INITIAL CUSTODY PROCEEDING
A. Tactical Decisions: When to File; What Kind of Legal Action Should Initiate Custody Proceedings
A parent may bring an action under the Family Code for custody. Family Code §3021 which includes and action for dissolution of marriage, for nullity of marriage, or for legal separation.
A person may bring an action to determine custody or visitation in a proceed pursuant to the Domestic Violence Prevention Act. Cal. Fam. Code §3021 (e) and Cal. Fam. Code §6200.
A parent may bring an action under the Uniform Parentage Act for custody. Cal. Fam. Code §7600 et.seq.
A person may bring an action for exclusive custody authorized without filing of dissolution in authorized under Cal. Fam. Code §3120 .
A party may seek to join non-party who has custody/visitation interest of minor children of marriage. California Rules of Court, rule 1252. Joinder is mandatory in filing grandparent, stepparent, and defacto custody action.
The third party who is seeking custody or visitation may apply to court for an order joining themselves as party to the proceeding. A third party served with restraining order re: property or children may also apply to court for an order joining themselves as party to the proceeding. California Rules of Court, rule 1252. Prospective adoptive parents are parties subject to compulsory joinder in custody action between natural parents. However, failure to join them is not reversible when they had knowledge and failed to intervene. Jermstad v. McNelis (1989) 210 Cal. App. 3d 528, 258 Cal. Rptr. 519
A report of child abuse could result in a loss of custody to the accused parent. It could also shift jurisdiction to the dependency court. The client may need to retain counsel specializing in this area of law.
Termination of parental rights in adoption proceedings pursuant to Cal. Fam. Code §7660 et. seq.
Step-parent adoptions proceedings involve the right of custody under Cal. Fam. Code §9000.
Guardianship proceedings may be brought under Probate Code §1500 et seq.
B. Client Contact and Use of Available Resources During Custody Litigation
It is very important in custody litigation to understand the factors motivating your client. If the motives are not for child centered reasons, such as financial, then your client may have difficulty surviving a psychological evaluation.
It is also very important to determine whether your client’s expectations are reasonable. If the parent works from 9:00 a.m. to 9:00 p.m. or travels frequently, and the other parent is a stay at home parent, how likely will the court order a split custodial arrangement.
The attorney in a custody dispute must have a working knowledge of the developmental states of children and the time share recognized as working for each of those states. It will not be of any service to your client for you to argue that he should have 50/50 custody of a newborn if the mother is breast feeding the infant on demand.
Determine whether your client needs help controlling his/her anger. If she/he does, the client should seek therapy. Review the correspondence from your client to the other parent and educate the client how best to communicate without displaying such anger.
If your client has parenting issues, consider having them enroll in a parenting class.
Have your client keep detailed records, such as a diary, calendar, etc. regarding the children and visitation/ custody schedules.
Contact witnesses to substantiate your client’s involvement with the children. These witnesses should include the children’s teachers, pediatrician, dentist, therapist, coaches, etc. Obtain declarations from these witnesses.
C. The Expense of Custody Litigation: Personal, Familial and Financial Considerations for a Party and Attorney
1. Personal: Custody litigation subjects a client to close scrutiny. This is the one area where “fault” becomes fair game. A client’s actions and words will be reviewed and judged. Such a battle is time consuming and the litigation is usually quite lengthy. If your client already has a therapist, you should speak to the therapist regarding your client’s ability to undergo and withstand such scrutiny and stress.
2. Familial: Just the like the individual, the family itself will be under close scrutiny. No matter how well intentioned the parties, the children will be aware that there is litigation going on that concerns them. They will experience anxiety and stress. Further, once a parent has read all those terrible things the other party has said about them, it becomes very difficult to co-parent. There is additional stress that cannot be ignored, merely from the fact that it is a stranger, either the evaluator or the judge, who will be deciding what will happen with your children.
3. Financial: Custody litigation is expensive. Significant attorneys’ fees are incurred preparing your client on how to deal with the other party, how to deal with the evaluator, how to deal with the Judge. Speaking to witnesses and preparing declarations takes time. The psychological evaluation is expensive.
D. Experts — What Kind and How to Use Them:
1. Custody Evaluations
One of the first decisions to be made is whether a custody evaluation would be useful. Every case does not require a custody evaluation, however, in certain cases, such as a move away or where there are abuse allegations, an evaluation can be a necessity.
The requirements and procedures for all custody evaluations is set forth in the Rules of Court, Rule 1257.3.
Once it is determined that an evaluation would be useful, the attorney must consider what type of evaluation should be used. The choices include, Child Custody Evaluation Office, Panel Psychological Evaluation, Private Psychological Evaluation or Mini Evaluation.
For every evaluation, the attorney should review the stipulation presented very carefully. The attorney should not waive rights of their client, such as the right to depose or examine the evaluator, the right to strike portions of the report as being inadmissible testimony, or the right to have the report admitted without foundation. These provisions are standard language in many stipulations for evaluations, especially the stipulations provided by the Custody Evaluation Office. It is possible to strike any offending language in a stipulation prior to having your client sign one.
The Child Custody Evaluation: This is an evaluation which is performed by the Child Custody Evaluation office at the court house. This office typically does not do psychological or psychiatric testing. Nor will the evaluation be performed by a licensed psychotherapist. The evaluation is generally the least expensive of the options. The Child Custody Office will perform home visits, thus if the home environment is a concern then this may be a good choice for your client.
The Panel Psychological Evaluation. This evaluation does involve psychological testing. You have no choice of evaluators, however, as you are given whoever is next up on a rotating list. The psychologists who perform Panel Evaluations are honest about the limitations they impose on the panel cases due to financial constraints. For example, there usually will not be a home visit in a panel case. There is also little time available to perform collateral interviews. The parties and the children meet in different variations in the evaluators office. This used to occur in the Psychiatric Office at the Court house, however, the Psychiatric Office has not been moved to private offices. These meetings can actually be quite limited.
The Private Psychological Evaluation. This Evaluation tends to be the most expensive of the choices. There is a larger selection of Psychologists who perform private evaluations, although typically all of the evaluators on the panel also perform private evaluations. Be aware that not all of the psychologists will perform a home visit, even in a private evaluation. If this is important in your case be sure to inquire whether this is to be included before you select your evaluator. In a private evaluation, the evaluator spends more time with your client and has more time available to check with collaterals, speak to therapists, school teachers, etc. If you are having a private evaluation performed, be sure to provide the evaluator with a list of the individuals you desire them to contact, along with their work and home telephone numbers. Keep in mind that a private evaluation will take approximately three to five months to complete.
MiniEvaluation. A direct result of the length of time required to obtain even a Child Custody Evaluation, has caused many judicial officers to request Mini Evaluations. These evaluations are used in circumstances where the court needs to make interim orders pending a full evaluation, where the issues are limited (such as why a thirteen year old is refusing to visit with a parent), or in cases where time is critiCalifornia These evaluations are exactly what they are called, mini. The evaluators meet with the parties and children for a few hours. In the usual matter these evaluations include no or minimal paperwork, nor psychological testing, no home visits and no collateral interviews. The benefit to a mini-evaluation is that it can be performed and a short report written within a matter of days, as opposed to months. For some evaluators, the charge for the evaluation, includes a telephonic court appearance at no extra charge.
2. Other Experts
Depending on the issues involved in your custody litigation, it might be necessary to hire a private investigator, a polygraph expert, a monitor and/or drug testing. Although some evidence obtained by an investigator may not be admissible in court, the evidence can be provided to a custody evaluator. The same is true of polygraph results.
E. Scheduling of Hearings
An Order to Show Cause or Trial is scheduled by the court in which the matter is filed. Many times the hearing will be set at least two months away. Keep in mind that many court’s require the parties to attend Conciliation Court prior to any hearing on custody. The date must be scheduled at the time the Order to Show Cause is filed. The Conciliation Court in many districts are busy and crowded and are making appointments two months away. If you are filing in Los Angeles, your client may attend Conciliation Court at any of the court houses, not just the district in which the action was filed. Los Angeles Superior Court central usually has the longest wait to obtain a conciliation court date, thus it behooves counsel to try the outlying districts for an earlier date.
Due to the difficulty of obtaining an early Order to Show Cause date, it may be necessary to file and ex parte request for an Order Shortening Time so that the hearing can be heard as soon as possible (in most cases no sooner than four days.
F. Effect of the Child Support Laws Upon Custody Determinations
Since the change in child support formula to include a factor for how much time the parents have “primary physical responsibility for the children” (Cal. Fam. Code §4055(D)), the disputes about time sharing of the children have increased. Furthermore, both Head of Household status and the dependency exemption are dependent on which parent has the greater custodial time. It is difficult to determine whether the parents are motivated by the best interests of the children or financial reasons. Often it is both. If the client do not have money to send their children to camp, hire a tutor, or go on a family vacation, the time share factor may be significant.
Family Code §4057.5 provides that subsequent spouse or nonmarital partners income will not be considered in determining the amount of child support ordered except where excluding that income would result to extreme and severe hardship. There are many situations that do not meet that threshold that are going to impact custody issues. If one parent has the economic advantage because they are living with or remarried to someone of means, that will give them money to litigate or to lure the children with a better lifestyle.