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Child Custody FAQ

Can I get sole custody of my child(ren)?

It depends. If the other parent agrees, you can. However it does not relieve them of their obligation to provide child support if indicated. If the other parent doesn’t agree, consider this; Courts generally don’t like to award sole custody to one parent without substantial evidence that joint custody is not in the child’s best interest. Proof of abandonment is evidence, but it still might not be enough. You must confer with an experienced family law attorney to discuss what grounds may exist for sole custody.

Can I keep the other parent from seeing my child(ren)?

Rarely. Mental health professionals, courts, and our legislature all believe that children do better when they have a relationship with both parents. Proving to a judge that no relationship is in the child’s best interest is difficult and rare. It is more likely that the court would order supervised visitation or simply disallow overnights with the troubled parent. Talk to an experienced family law attorney about grounds for no visitation.

Whatever you do, do not make false claims of violence or molestation. First, it’s a crime. Second, Courts can reduce the custody for someone if they believe that person made false claims in an effort to influence custody orders or get more money for support.

The other parent is only spending more time with the child(ren) so they can pay less child support. What can I do?

Sometimes one parent will increase their visitation in an effort to avoid paying child support. Courts are not oblivious to this fact. At the same time, new circumstances often create a legitimate desire to spend more time with the children. A parent who was previously too busy to spend time with the kids often finds the desire and time to spend with the kids now. Divorce really can make for more attentive parents. When this phenomenon is combined with the court’s general preference that parents share equal custody, it can be difficult to convince a judge that the sudden increase in visitation is actually bad for the children and that the children would be better off spending less time so that the other parent can get more child support.

The best way to overcome an insincere increase in visitation is by keeping detailed hand-written records of the actual custody exercised by each parent. Courts are inclined to make custody orders which reflect the status quo; if the other parent is not consistently exercising all of the visitation available to them, the court will take that into consideration when making its order.

Can I move out of town with my child(ren)?

Yes, with the other parent’s written permission. Without permission, you must prove to a judge that the move is in the child’s best interest. Since courts believe that equal time with each parent is generally in the child’s best interest, the benefit of the move must outweigh the reduction in visitation time for the parent left behind. Of course, if the parent left behind is not exercising regular visitation, the standard which must be proved to the judge will be lower.

What if my spouse threatens to take our child out of the country?

Parental kidnapping is a felony and is enforceable by the State Department through injunctive process.  If you fear that parental kidnapping is a possibility, it might be a good idea to lock up your child's passport in a safe place and notify the State Department of your concern.  Since children cannot be taken out of the country legally without their passport, your control of their passport is critical.  There may be other preventative measures that one of our family law attorneys would suggest after a consultation.

If your child is taken out of the country without your knowledge and/or consent, you must file a federal complaint immediately and hope that your spouse has taken the child to a country that is signatory to the Hague Convention.  There is reciprocity with signatory countries regarding minor children.  Unfortunately, enforcement is difficult and inconsistent.  More information is available here.

I don’t approve of the person my ex is dating, how do I keep them away from my child(ren)?

Unless the new girlfriend or boyfriend poses a real danger to the child’s safety, it can be extremely difficult to limit time spent with a new partner. Courts want children to have normal lives and part of a normal life is each parent moving on to another relationship. Unless the new partner is committing crimes, engaging in dangerous behavior with the children, or has been convicted of domestic violence or molestation, keeping them from you children can be extremely difficult. You must consult with an experienced family law attorney to determine whether or not this is a realistic goal.

My child(ren) don’t want to see the other parent, what can I do?

Because of new legislation resulting from the Elkins Report, children are allowed to testify about their custody wishes. A judge may take their testimony into account when making a decision. A judge must consider the testimony if given by a child 14 years or older. However, that does not mean a judge must agree with the child. The judge’s ultimate decision should be based on what is in the child’s best interest.

During and after divorce, children can suffer from a condition called "parental alienation."  Sometimes this is a byproduct of the process, sometimes it is caused by one parent speaking ill of the other.  Courts recognize this phenomenon and sometimes use it to discount a child's stated preference. 

If there are true issues and concerns regarding the other parent, you must gather evidence and witness which document the concerns and incidents which you hope will ultimately sway a judge into making a decision which they are generally biased against making. This requires good and usually abundant evidence. If this is a course of action you wish to pursue, you need an experienced family law attorney to help ensure you don’t poison your case by moving ahead prematurely or with unrealistic expectations.

What does a judge consider when making custody orders?

When making custody orders courts must consider what is in each child’s best interest. This varies from family to family and from child to child and is based on testimony and evidence. The judge will make decisions about the parents based on how they look, how they act, and what the other parent says about them. The judge will consider any evidence presented regarding what is best for the child. Children are allowed to tell a judge what they like, and new laws say a judge “must consider” the opinion of children 14 years and older, but judges ultimately make their decision based on what the judge believes to be in the child’s best interest.  Call us to talk about coaching for parents involved in custody disputes.

What will the Judge order?

That’s the million dollar question which nobody can answer. Unfortunately, when you go to court, you don’t get justice. You don’t get what is “right” or “fair”. You get a decision made by a person who makes decisions for a living. They usually make their decisions after reviewing evidence, considering testimony, and reflecting upon all their legal experience and training… sometimes they’re wrong. Sometimes the appearance of truth is stronger than the truth and the children are the ones that suffer. Sometimes its just easier or safer for the judge to divide custodial time equally. That is why we always encourage parents to try and reach agreement before rushing off to put their kids in the hands of a stranger. You wouldn’t leave your kids with a stranger standing outside the courthouse, why would you trust a stranger inside the courthouse?

The only good reason to incur the risks and costs of court is because you strongly believe the other parent does not or cannot consider what is best for the child and will not agree to something in the child’s best interest.

Rather than rush off to court, most child custody issues can be resolved by a skilled mediator or neutral mediating attorney. In fact, California law requires that parents mediate with a court appointed mediator before they can see a judge. Unfortunately, the mediators provided by the court are usually overworked, and often not as experienced as you’d hope. Taking the steps necessary for a judge to order the other parent into mediation can inflame and exacerbate the situation and make agreement more difficult.

Call us at (818) 348-6700 to discuss the advantages of mediating your custody issues without the cost and risks associated with litigation.