The issues of child custody and visitation is considered by many attorneys to be the most difficult issue during the case. In custody cases there are no winners and losers. All anyone can hope for is that after the parents separate they can work together reasonably to help the child[ren] transition to the new dynamics of their family. Unfortunately parents will not always see eye-to-eye on what is in the best interest of the child[ren] and the issue must be resolved.
If an agreement cannot be reached by the parents on how to share the child[ren] there are a number of options available that should be explored in order to try and avoid litigating the issue. Some of those options include meeting with a parenting coordinator, attending custody mediation, negotiating through attorney’s, seeking assistance from properly trained therapists or religious and spiritual advisers, or the use of a professional custodial evaluator. Some of the aforementioned opens bring with them higher costs and should be discussed with your attorney.
Public policy prefers that custody matters get resolved without litigation, however, if all else fails the final option is going before the Judge. Going to Court should be the last resort in all custody cases but sometimes is the only option.
When engaging in custody litigation often the starting point is looking at arrangement has been in place historically, commonly referred to as the status quo. The overarching principle guiding the Court in making a decision related to custody and visitation is fashioning an order that is in the best interest of the child[ren]. Often the status quo is presumed to be in the best interest of the child[ren] unless detriment can be demonstrated.
The Judge will evaluate each case, taking into consideration all the facts and evidence, in order to determine what custody and visitation schedule is in the best interest of the children. The term “best interest of the child” is very broad and can encompass a variety of different factors which are can be unique to every case. However, the law does provide some general principles that we often rely on in arguing these matters. Some of those principles are:
In some circumstances, the Court also can take into consideration a child’s input. The law requires that the Court consider the preferences of a child 14 years of age or older unless it finds doing so is not in the child’s best interest. [Family Code Section 3042(c)] Nothing precludes the Court from also hearing the preference of children under the age of 14 if the Court finds the child has the necessary level of maturity and intelligence. With that being said, just because the Court receives a child’s input does not mean it has to base its orders on that input. The Judge will not defer its roll as the judiciary and trier of facts to any third party, including the children.
When going through the Court system, San Diego requires all the parties to attend recommending mediation. The mediation is conducted by an employee of the Court, usually a social worker of sorts, and does not include attorneys. If an agreement is not reached the mediator will draft a report that will include a recommendation for custody and visitation. The report will be provided to each parent as well as the Judge. At the hearing the Judge will consider the report, the facts and evidence presented by each party and all evidence received in rendering a decision on the issue of custody and visitation. The initial order of custody made in a case becomes the status quo and can be difficult to make significant changes to down the road.
There are dozens, if not hundreds, of additional nuances, intricacies and potential traps in a custody case. It is extremely important to have experienced counsel by your side when dealing with such important matters. The attorneys at Clemens | Warren, L.L.P. are experts in the area of custody and visitation and are ready to assist you immediately.
