Custody Disputes

There are two types of custody, legal and physical. 

Legal Custody gives the parent(s) the right to decide where the child will live, what religion they will practice (if any), what school, what doctors, etc.  In other words, all the crucial decisions a parent must make.

In 95% of custody cases, the parents share joint legal custody.

Physical Custody is the right to see your child.  There are several "buzzwords" including names like primary physical custody, joint custody, and visitation, but usually the better way is to try to find a schedule that works for your child(ren).   For instance, if you live far apart, you will likely want a different schedule than if you live close to each other. 

Joint Physical Custody is just what it sounds like- 50/50.  However, the hours do not have to be exactly split down the middle.  If one parent is the "homework helper", the child should probably be with that parent on homework nights. 

Primary Physical Custody means over 50% and it usually applies to the parent that has the majority of the time with the child, many times 80% or more.  The other parent may get visitation every other weekend and dinner every Wednesday, for example.  

Having primary Physical Custody or sole Legal Custody is a prerequisite to getting a “move away” order. See In re Marriage of Brown & Yana (2006) 37 Cal. 4th 947, a California Supreme Court case; also In re Marriage of Seagondollar (2006) 139 Cal. App.4th 1116.The parent with sole physical custody seeking to relocate does not have to establish that it is “necessary” to do so.  Instead, he or she ‘has the right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.”  (Fam. Code § 7501.)

Notice of move to the other parent is also required. (See Family Code Section 3024)

 

Monitored Visitation

If you believe your ex should not be alone with your child(ren), you can ask the court to not allow your ex to see your children with a monitor. The monitor can be an off duty sheriff, a person you both agree on or a person the Court appoints. Professional monitors charge $40+ an hour for their services.

If the monitor sees any type of activities during a visit that are detrimental to the child, they will terminate the visit and should report it to the Court.   

 

Exchanges for Visitation

Sometimes the parties have a problem during pickups and drop-offs and cannot agree on who will do the driving.   Most Judges will tell you to split the driving and if there are too many problems, have the exchange at a police station so any problems like failure to show up by a parent can be documented in a police report and the police can also “keep the peace.

 

Custody Disputes

If the parties cannot agree on custody and visitation schedules, one party may ask for or the Court may order a child custody evaluation.  There are at least 3 types of custody evaluations.  This is where it pays to choose the best Los Angles custody lawyer since it is very important to pick the right evaluator.  For example, in Los Angeles County the court has a panel of about 50 evaluators to determine issues such as where you child will live to whether it would be in your child’s best interests to  move away to another state.  We know which evaluators tend to favor men or woman and which ones can be fair and nonpartisan. 

The first type of child custody evaluation is done by social workers and takes 1-3 hours at the court.  They usually do a good job for the resources they have but how much can you really learn about a family in that length of time?  Generally, they tend to stick with the “status quo” since the Court does not want to change a schedule unless there is a good reason.  However, the price is right.

The second type of child custody evaluation (CCE) is done by psychiatrists or psychologists on the “panel” referred to above, or with an evaluator the parties agree to.  This can cost $5,000 or more (unless it is a “focused or mini-evaluation” just to determine one issue- like should a parent be allowed to move away to another state with your child).

The next type of CCE is a Evidence Code 730 Evaluation (seehttp://www.leginfo.ca.gov/cgi-bin/displaycode?section=evid&group=00001-01000&file=730-733) which usually involves medical doctors when one party thinks the other has serious mental or medical problems.  This evaluation can take upwards of 9 months and can be $20,000 or more if there are many witnesses the doctor needs to interview. This CCR is a comprehensive study and analysis of the "family, it's members, and/or prospective members", and their relationship to determine what  would be in the "child's best interest."

At the end of the evaluation, the evaluator will summarize their work, findings, and recommendations, and submit a written report to the Judge. 

A 730 evaluation will also consist of psychological testing. Interviews are conducted with all adults involved with the child, including parents, stepparents and others who have significant roles in the child's life. The evaluator may be a licensed clinical psychologist, licensed psychiatrist, Marriage and Family Therapist (MFT), Marriage, Family, and Child Counselor (MFCC), Licensed Clinical Social Worker (LCSW) or a Master of Social Work (MSW).

See also 2003 California Rules of Court Rule 5.220 - Court-ordered child custody evaluations,  2003 California Rules of Court Rule 5.225 - Education, experience, and training standards for court-appointed child custody investigators and evaluators. California Family Code Section 3110-3118

The evaluation is supposed to determine what is in the overall "best interest of the child". That is the golden rule in all jurisdictions in the United States.

However, what is and is not in the child's best interest is very subjective both from a legal and psychological perspective.

After the report is complete and given to the court and the parents, they can agree to the recommendations made.

If not, they can fight in Court, but most Judges almost “rubber stamp” the recommendations of the evaluator, since otherwise their report would have little value.

If either of the parties (parents or attorneys) are not satisfied with the evaluation report and its recommendations, they may take the evaluator’s deposition and subpoena the evaluator to appear in court for cross-examination.  A party can also call other witnesses, subpoena school and medical records and fight the custody dispute in other ways.  Under a new state law, a Judge can also listen to a child in their chambers, but this is very rare.  The court can also appoint a lawyer for a child. 

You can even hire another mental health professional to criticize the evaluator, his/her methods and recommendations and bring him/her to court to testify.   

The court will often consider your child’s wishes especially if he or she is 14 or older.  They can also testify in court but our firm discourages parents involving their children in custody disputes. 

Even if the child wants to live with one parent, children do not run the courts, and a Judge will ultimately decide where your child will live if the parents cannot agree.

See http://law.onecle.com/california/family/3042.html 

California Rule of Court 5.250: http://www.courtinfo.ca.gov/cms/rules/index.cfm?title=five&linkid=rule5_250

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