Orange County Child Custody Attorney
A Complete Guide to Child Custody Orange County
Most parents indicate that the most important issue in their family law case is the child custody and visitation orders. According to recent 2013 data on Census.gov, “More than one-quarter (28.1 percent) of all children under 21 years of age in families lived with only one of their parents while the other parent lived elsewhere.” Our Irvine child custody attorneys have extensive experience negotiating and litigating all aspects of child custody and visitation. The following is a brief overview of Orange County child custody law.
Child Custody Legal Issues:
Legal custody concerns a parent’s rights to make decisions regarding the health, safety, education and welfare of a minor child. Joint legal custody means that the parents equally share the right to make these decisions (Fam. Code §3003). Sole legal custody of a child means that one parent has the right to make all legal custody decisions (Fam. Code §3007). The court can order that although the parents have joint legal custody, one parent may have the right to make a final decision if there is a disagreement. (Marriage of Buser) Generally, the Court orders that parents share joint legal custody.
What if parents can’t agree on a legal custody issue for their child?
When an order of joint legal custody exists, the family court expects parents to work together and cooperate to further the best interests of a child. Sometimes, however, it’s not that simple. our Orange County child custody lawyer team have litigated countless cases where parents can’t agree on some decision that has to be made for a child and it results in a fight and/or one parent taking unilateral action. Here are some of the top issues that Parents most often disagree about during a child custody case in Orange County:
- Where the child will attend school. Parents that have split up live in different locations and most often a parent wants the child to go to school close to that parent’s house. Usually, the child will attend school in the “custodial” parent’s school district, but that is not always the case. We have litigated cases where the non-custodial parent was given sole legal custody over a particular legal custody issue for a child.
- What religious affiliations the child will or will not have. Both partners in the marriage might have different religious upbringings or beliefs. Determining which religion, if any, to encourage during the child’s upbringing frequently becomes a heated discussion.
- What medical decisions are to be made. Parents often disagree about the medications a child should take, what doctor they will see, whether a specialist is needed, whether the child need orthodontic work, and so forth. And these medical expenses will be factored into setting the designated amount of support for the child that one parent will have to pay.
- What safety precautions must be taken for the child. For example, whether a child must ride in one particular car seat over another, or how the child will get to school, or the age in which it is appropriate to leave the child home alone.
The main, and really only, factor that the family court judge will look at when deciding
whether to grant one parent sole legal custody over all issues or a particular issue is
the extent to which the parents are acting in the best interests of the child.
In the event the parties cannot agree on one or more legal custody decisions for a child, the Court has the discretion to do any of the following:
- Grant sole legal custody of the child to one parent for all issues.
- Grant sole legal custody of the child to one parent for one or more specific issues, such as where the child goes to school.
- In some occasions, the court will allow one parent to make decisions about a particular issue but that parent must notify the other parent about that decision.
What if one parent makes unilateral decisions for a child without consulting the other parent?
When one parent makes unilateral decisions relating to the health, safety, welfare, education, religion or other important decision for a child, his or her conduct may have a detrimental impact on that parent’s future legal and/or physical custody rights. You might be surprised how often it happens given the possible impacts described below.
First, making unilateral “legal” custody decisions while an order for joint legal custody exists is a violation of a court order that may be punishable by contempt.
Second, the court looks unfavorably on a parent that makes unilateral decisions for their child, while excluding the other parent for the decision. The law promotes both parents’ involvement in making important decisions for a child. The family court judge is required to make custody orders that place a child with the parent that most likely facilitates the other parent’s relationship with the child. This means that ultimately the court could modify physical custody orders (i.e. the parenting plan) due to one parent acting rogue.
Physical Custody Issues:
Physical custody in an Orange County child custody case means where a child resides and which parent provides care on a day-to-day basis. Generally, the court shall enter physical custody orders according to the best interests of the minor child (Family Code §3011). The best interest’s standard includes but is not limited to analysis of:
- The child’s health, safety and welfare.
- Whether there is a history of abuse (physical or emotional) perpetrated by one parent upon the child, the child’s sibling or the other parent.
- The nature (i.e. supervised or unsupervised and in what setting) and amount (i.e. frequency) of contact with both parents.
- Whether either parent has habitually or continually misused drugs or alcohol.
Furthermore, it is the Court’s goal to ensure that a child has frequent and continuing contact with each parent after separation, so long as it is in the child’s best interests (Fam. Code 3020(b)).
The parent who cares for a child more than 50% of the time is referred to as the custodial parent. The parent who cares for a child less than 50% of the time is the noncustodial parent and he or she exercises visitation with the child. The terms custodial, noncustodial, and visitation unfortunately have a negative connotation with family law litigants. The Family Code considers two parents who share significant periods of time with a child to share “joint physical custody” and there is no requirement that an exact 50-50 arrangement be in place (Fam. Code §3004). For more information about “father’s rights”, click here.
As mentioned above, the court places a premium on the parent that is most likely to facilitate the other parent’s relationship with a child.
Parents involved in custody disputes often complain that the other parent is “alienating” the child from that parent, thereby effectively limiting the parent-child relationship. This is a common complaint in family law and unfortunately is often present in custody disputes. Although child psychologists and the courts use different terminology than “parental alienation,” the concept is well known and considered by the courts.
So what do you do if the other parent is alienating your child from you? Fortunately, you have several options:
- First, you can get the child into counseling. If the other side doesn’t agree, you have the option of filing a motion with the court and telling the judge what the problem is and how you propose to resolve the issue. Give specific examples.
- Second, you can ask the court for a modification of custody or a change in custody, whereby the child would be in your primary care.
- Third, you can ask the court to order a Family Code 3111 evaluation (also called a “730 Eval”), wherein a qualified child psychologist will conduct an investigation and report to the court its recommendation.
The Mediation Process In Child Custody Proceedings:
In order to obtain child custody and visitation orders, a parent must file a request for order (RFO) with the Family Court requesting the same. Once filed, the Family Court will set a mediation date with Family Court Services. Our experienced child custody lawyers in Irvine can assist with these requests. Family Court Services is a Court program where certified mediators meet with both parents in an attempt to obtain agreements concerning child custody and visitation. In the event that the parents cannot reach an agreement at mediation, the matter is submitted to the Judge for determination. Orange County is a non-recommending County, which means that Family Court Services does not provide a written recommendation to the Judge concerning a proposed child sharing arrangement for the family.
In lieu of attending Family Court Services mediation, the parents can elect to hire a private mediator to assist them with reaching an agreement concerning child custody and visitation. This private mediator can either be a recommending mediator or a non-recommending mediator. A recommending mediator would write a recommendation to the Family Court judge about the parties agreements, the parties issues in dispute, the facts and circumstances of the parties, the children, and any other relevant circumstances in the case, and in the court would consider such report when issuing custody and visitation orders.
Parenting coordinators are often used after a court order establishing a parenting plan has been entered by the court. The parenting coordinator’s role is to step in and help parents resolve parenting disputes before either parent files a motion with the court. The parenting coordinator is usually appointed by stipulation (i.e. agreement) between the parties and their services are paid for directly by the parties. The parenting coordinator is available to assist parties in resolving legal custody and physical custody disagreements.
Temporary Custody Orders Versus Final Custody Determination:
The custody orders entered prior to the entry of a divorce judgment or paternity judgment are known as temporary child custody orders. The orders that are entered in a judgment of divorce or paternity may or may not constitute a final custody determination. The reason it is important to know whether child custody orders are a final custody determination is that in any future proceedings, a significant change in circumstances must occur in order to modify a final custody determination (Montenegro v. Diaz). Generally, if one parent is seeking a change in custody (i.e. non-custodial parent wants to be primary custodial parent) a significant change in circumstances is necessary (Brown v. Yana).
Trial on Child Custody & Visitation Issues:
In the event the parents cannot agree upon a child sharing arrangement in the judgment, the Family Court will set the matter for a trial to determine the best interests of the children. Based on the testimony of the parties, experts involved in the case, and any third parties whose testimony is relevant to the matter, the court will issue child custody and visitation orders, which generally will be considered a final custody determination. Generally, a parent has a right to an evidentiary hearing (i.e. trial with testimony) when determining final custody orders (Marriage of Alan S; See Also Marriage of Elkins).
Ex Parte Child Custody Orders:
In the event there is an emergency, the Family Court has the ability to enter ex parte (or immediate) custody orders. The court will not grant any ex parte custody orders unless there is a showing of either immediate harm (i.e. domestic violence or sexual abuse) or an immediate risk the child will be removed from California (Family Code §3064). In the event that emergency ex parte custody orders are granted, the Family Court will conduct a hearing within 20 days of the date of the ex parte hearing to determine why the emergency orders should or should not be extended (Fam. Code §3062). Be advised that the Family Court strongly disfavors ex parte custody requests and only true emergencies should be filed on an ex parte basis.
Custody Evaluations & Psychological Evaluations:
In some cases the court will order that a custody and/or psychological evaluation be conducted (Fam. Code §§3010-3011 and Evid. Code §730). In any custody evaluation psychological evaluation, the court shall make specific orders related to the purpose and scope of the evaluation as well as the manner in which the evaluation is conducted and which party or parties are responsible for the expenses related to the same (Marriage of Seagondollar; Cal. Rules of Court §5.220). In the event you find yourself with a custody evaluation being ordered it is highly recommended that you engage counsel to assist you with this matter.
Move Away Cases:
Anytime a parent requests to relocate outside Orange County, the request is considered a move-away case. The Court’s analysis concerning the move-away depends on the timing of the request for the move away and the custodial circumstances at the time of the move-away request.
Generally, if the move-away request is made prior to a final judgment in a divorce or paternity action, the Court will analyze the move-away request under a best interests analysis as set forth in Marriage of Burgess. From a practical standpoint, the factors as set forth in Marriage of La Musga will also be analyzed.
If the move-away request is made after a final judgment and the parents share joint physical custody, then Fam. Code §7501(a) does not apply and the Court will consider the move-away request as a best interests analysis under Marriage of Burgess.
If the move-away request is made after a final judgment is entered and one parent has primary custody of the child, then Fam. Code §7501(a) applies. This section provides that the custodial parent has a presumptive right to relocate subject to the Court’s power to restrain the relocation. Further, the Court will consider the factors set forth in Marriage of La Musga, which include but are not limited to:
- The child’s interest in stability and continuity in the custodial arrangement;
- The distance of the move;
- The age of the child
- The child’s relationship with both parents;
- The relationship between the parents including, but not limited to their ability to communicate and cooperate effectively and their willingness to put the child’s interests above their individual interests
- The child’s wishes if the child is mature enough for such an inquiry to be appropriate; and
- The extent to which the parents are sharing custody.
International Move Away Cases
If you have an international child custody move away case that you need help with, click here for our international move away guide.
Get Our Professional Irvine Child Custody Lawyers on your side!
If you find yourself facing a child custody or visitation issue, call the Irvine family law attorneys at Wilkinson & Finkbeiner to assist you with your case. Our Orange County child custody attorneys will listen to the specific issues in your case, advise you of the applicable case law that governs the circumstances of your matter and will counsel you on your options. Our attorneys specialize in child custody issues in Irvine and throughout Orange County and can help you navigate through custody cases involving private mediation, hearings and trials.