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The Nelson Kirkman Legal Team

Do You Have Questions About Child Custody And Visitation?

Parents’ foremost concern is always their children. At Nelson Kirkman, we understand this because we have represented parents throughout Orange County since 1998. On this page, you will find our answers to some of our prospective clients’ most common questions about child custody and visitation (parenting time) in family law cases.

How do divorcing parties resolve custody disputes when there is no hope of reaching an agreement?

When divorcing parties cannot come to an agreement on the custody of their children, the family court will decide all aspects of custody, including physical and legal custody, for them. Such orders typically are made after a hearing that may include witness testimony. The court may make additional orders pertaining to the children’s education and relocation.

Does a divorce lawyer need special training to represent me in a child custody matter?

Divorce lawyers must have a particular set of skills and knowledge to effectively represent clients in child custody matters. The statutes and case law around child custody is complex and quick moving. A divorce lawyer must stay up to date on all changes to the law, however minor, to competently represent clients in child custody hearings. Additionally, a divorce lawyer must have a strong mix of trial skills and must be especially conversant on Evidence Code Section 730/Family Code Section 3111 child custody evaluations and psychological testing.

Are child custody matters treated the same way by all judges?

No, different judges handle child custody matters in different ways and hold varying opinions on subjects such as the child moving away from one parent. The branches of the Superior Court in the State of California are not uniform in their treatment of child custody issues and there is also variation from county to county within the state.

Does your firm handle divorce cases in other California counties?

Our practice primarily centers on Orange County, Los Angeles County and San Diego County. Lawyers must be familiar with the courts, judges, and particular family law rules in each county where they practice law, so it’s in the best interests of our clients to specialize our practice in a few counties instead of spreading out throughout the vast state of California.

Why does a child custody lawyer need strong trial skills?

A child custody hearing is a trial before a judge. It has many traits in common with other trials, but with the added complexity of family law. Child custody lawyers must be very sharp on the rules of evidence, burden of proof, and the nuances of child custody law. A lawyer without strong trial skills may fail to properly present their case to the judge.

What value does your firm bring to child custody matters?

Our team takes pride in using a teamwork approach when representing our clients in child custody matters. We are experienced litigators with the sharp trial skills needed to effectively represent you and defend your rights as a parent, while also having deep expertise in the nuances of California family law guiding the court’s decisions on custody and visitation.

When can I expect to hear your detailed opinion of my child custody case?

Our clients receive a candid analysis of the strengths, weaknesses, opportunities, and threats to their child custody case after their first attorney-client meeting and are updated as additional facts about the case emerge. You deserve the opportunity to make smart decisions about your children and their future, and to do that, you need the unvarnished truth about the situation.

Should I attempt to settle my child custody dispute?

Settling child custody disputes and avoiding litigation is always the preferred route. We recommend clients take every possible action to settle a dispute before it reaches the courtroom. Litigation comes at a high cost, and not only in money – parents should consider the emotional toll litigation takes on their children as well as themselves. Even if settlement seems impossible, a careful review of the outcome of litigation should be undertaken. What will a “win” look like? Is winning the fight worth what it will cost both in money and emotional trauma? Litigation should only be pursued after these important questions are answered.

Will all lawyers defend my rights as a parent equally?

Absolutely not. Lawyers are different, with particular strengths and specializations. An excellent child custody lawyer is often the difference between the success and failure of your children achieving the future you want them to have. You should learn about a lawyer through public resources such as their website and then interview them to determine if they are a good fit for your family’s needs.

What are the steps of child custody litigation?

Typically, the court will make a temporary order during the Request For Orders (RFO) stage. After this stage, written discovery and depositions occur, including potential expert witness testimony. Finally, a permanent order is made as part of the divorce trial.

How does child custody impact other areas of the divorce?

Child custody orders have a great impact on many other factors in a divorce. For example, a parent with custody may be prevented from moving away to pursue a better job opportunity. Custody also has a direct impact on child support payments, which may increase as the payers’ income increases or timeshare percentage of custody decreases. Custody matters also play a role in the treatment of outcomes, such as the decision to keep or sell the family home. Since the impacts of child custody are far-reaching, it is important to make decisions with the support of a team of experts ranging from the divorce attorney to therapists and experts in child mental health. Ultimately, the goal is to achieve the best outcome for the children and help them weather the storm that divorce has brought into their lives.

What is the difference between physical and legal custody?

Physical custody defines where a child lives on a day-to-day basis. There may be sole custody or joint between the parents. Legal custody defines the responsibility to make important decisions in the child’s life, ranging from health and medical to education. Courts in Orange County award joint legal custody in most cases, but this may differ based on the case. Both physical and legal custody can be joint or sole at the judge’s discretion.

What is the definition of legal child custody?

Legal custody defines the responsibility to make important decisions in the child’s life, ranging from health and medical to education. Typically courts in Orange County award joint legal custody in most cases, but this may differ based on the case. Typically, courts are not interested in ordering what school a child should attend. Instead, they award legal child custody to one parent specific to education matters, authorizing that parent alone to make decisions in this area.

Is child custody mediation required?

Yes, child custody mediation is mandated by the family court. The goal is to reach a custody agreement before the divorce ever reaches the courtroom. Child custody mediation is confidential, and the results will be shared only with the judge if an agreement is reached between the two parties. Divorce attorneys do not attend the mediation session, but it is important to work with a divorce attorney before mediation to have a strong understanding of the process and your personal goals for a custody agreement. If an agreement is made in mediation, it will likely control your children’s custody for years to come, so both your interests, and those of your children, will be best served by preparing for the mediation with an effective child custody expert.

Are parents allowed by the court to design their own custody schedules?

Yes, the court will rarely question a schedule if both parents agree to it. If the differences between the parties can be resolved and a schedule agreed to by both parents, they are not required to attend child custody mediation.

Does the court allow parents to make child custody orders that cannot be modified?

No, the court will not accept a non-modifiable agreement on child custody even if both parents agree to it. The divorce court always reserves the right to change child custody agreements and orders as new facts emerge or conditions change. The divorcing parties cannot stop the court from modifying child custody orders in the future (IRMO Goodarzirad) and cannot stop the court from allowing one spouse to relocate with the children (IRMO Abrams).

How much flexibility do parents have in developing a custody plan?

The divorcing parties have great flexibility and discretion in developing a mutually agreeable custody and parenting plan. The key to this flexibility is both parents agreeing that a plan is best for their children and their own considerations. If the divorcing parties cannot agree on a plan, the court will develop a parenting plan for them. Although the divorcing parties have discretion in developing a plan, it is not easy to change the plan once it is in place. Although aspects of life, such as the work schedule may change, ultimately both parents must follow the agreement in place.

What factors impact the court’s decision-making on child custody?

A wide variety of factors may be considered by the court when making child custody orders. The court’s goal is to create the best circumstances for the children, which is often a complex matter to determine. The following factors are often taken into consideration, although this list is far from exhaustive:

  • The maturity and age of the child
  • Current education level and school
  • Health and welfare considerations of the child
  • If the child will relocate from their current residence
  • Mental and emotional problems of both child and parents
  • Child’s preference for the parent they live with
  • If the child has special needs
  • How cooperative the parents are
  • A history of domestic violence in the home
  • Parents’ work schedules
  • The relationship the child has with each parent
  • The level of parenting skills each party demonstrates
  • Criminal activity in the home or neighborhood
  • Cultural factors
  • The presence of support systems for each parent
  • Willingness of each parent to involve the other in the child’s life
  • Evidence of drug use

Can the court base a child custody order primarily on economic factors?

No, the court cannot base child custody orders on the economic circumstances of the parents (Burchard v. Garay).

What is involved in a 730 child custody evaluation?

In contentious child custody cases, the court may order an Evidence Code Section 730/Family Law Code Section 3111 child custody evaluation. These evaluations are quite costly and delay a child custody case by at least four months, so the court will not automatically grant requests for such evaluations unless it deems them truly necessary. A child custody evaluation is performed by a licensed mental health professional who makes recommendations on custody and related matters to the court based on the evaluation. The evaluation involves interviews with the parents, children, and frequently other members of the community such as neighbors, teachers, and anyone else with relevant information. Frequently, the evaluation also involves a home visit to observe the parents and children in their normal environment. The evaluator frequently will hold multiple meetings with the parties alone, together, and a mix of the parties and the children. In general, a child custody evaluation increases attorney fees for both sides while dramatically lengthening the time involved in the trial itself.

What types of experts may be appointed by the court in a child custody case?

The divorce court may decide on its own or at the request of a divorce lawyer to involve a range of experts in a child custody matter. This may take the form of an Evidence Code Section 730/Family Code Section 5111 child custody evaluation, a “child custody investigation” (CCI), or even the appointment of a divorce lawyer to represent the interests of the child, known as a minor’s counsel. The court also has the power to order the divorcing parties to attend therapy related to the child custody matter.

Are experts always involved in determining child custody?

No, experts are not always involved in determining child custody. Frequently, no expert input is required at all. Deciding to involve a child custody expert in a case is a decision that should be carefully made in conjunction with your divorce lawyer, along with the equally important task of finding the perfect expert who will best represent your interests and those of your children while demonstrating credibility to the court.

Will the court consider domestic violence in determining child custody?

Yes, documented incidents of domestic violence can play a major role in child custody decisions. Divorce courts must take domestic violence situations into consideration when determining custody of children by statute. Assigning joint legal custody or physical custody to a parent who has been found to have committed an act of domestic violence within the last five years is presumed by the court to be damaging to the best interests of the child (Christina L. v. Chauncey B., IRMO Fajota, and Celia S. v. Hugo H.) Domestic violence may include stalking, taking someone’s cell phone without their permission, and threats, whether explicit or implied. The court will consider these incidents in context and different judges may place a different weight on incidents based on their judgment.

When does the court use either the ‘best interests of a child’ standard or the ‘change of circumstances’ standard in child custody orders?

When the court is making orders regarding child custody, it bases decisions on the best interests of the child — except for hearings to modify a final order (Montenegro v. Diaz). When a final order is being modified, the “substantial change of circumstances” standard is used (Burchard v. Garay). “Best interests” and “change of circumstances” are both vague concepts subject to interpretation by the court. Frankly, court decisions are often unpredictable by divorce lawyers, even when they are familiar with the judge’s history.

Even when the divorcing parties agree on how decisions should be reviewed, their agreement does not limit the discretion of the court to make a different decision (IRMO Cohen).

Can the custodial parent change a child’s residence whenever they want?

No, a parent cannot change the child’s residence by their own decision even if they hold sole legal and physical custody. No one has total power to change where the child of divorcing parties live (Brown & Yana).

How does the court consider the relocation of a child?

The court operates under the assumption that the parent requesting to move will, in fact, move with or without the child. The court will consider a modification to the existing child custody order, and one important part of this process is determining if the child will live with the party who is moving or live with the party who is not moving. A noncustodial parent attempting to modify a custody order to relocate a child faces a great burden in the court (Jane J. v. Superior Court).

Does a parent with physical custody need to prove that it is necessary to move?

No, a parent with physical custody does not need to prove that relocating the child is necessary (IRMO Burgess). In fact, a parent opposing a move must show it will be detrimental to the welfare of the child (IRMO LaMusga). If this is proven, the court will then weigh the differences between allowing the move, changing physical custody to the nonmoving parent.

What factors will the court consider before allowing the relocation of a child?

The court carefully considers multiple factors before modifying a custody order to allow the child to be relocated. The court will examine the willingness of each party to put the child’s interests first, the reasons for the move, the extent of shared custody under the current order, the age of the child, their relationship with each parent, and the ability of the parents to maintain whatever level of stability exists in the child’s life.

Does a move away attempt typically involve a hearing?

Yes, if there is a child custody arrangement in place, the divorce court must conduct a hearing to determine if the best interests of the child are being considered before a relocation (IRMO Cohen). If a final order is not in place, the court will use the “best interests of the child” standard to make its decision, which is a lighter burden of proof than the more substantial “change of circumstances test.” The divorcing parties cannot make a deal between themselves that stops the court from allowing the relocation of the child (IRMO Abrams). At the same time, the court cannot order a parent with lower financial means to relocate closer to the child’s residence (IRMO Fingert).

Can existing child custody orders be modified?

Yes, child custody orders can always be modified. The court reserves the right to change or modify existing orders and is not bound by agreements between the parties (IRMO Goodarzirad). To modify “final” child custody orders, the court must be shown a considerable change of circumstances from when the existing custody order was made. If the order is not final, the court is primarily interested in determining what is in the best interests of the child.

What types of change of circumstances may warrant modification of a custody order?

There are many factors that may be viewed by the court as being a significant change in circumstances as related to a custody order. Here are some of the more common items:

  • Interference in the relationship between parent and child (alienation)
  • Child abuse
  • Child’s preference as they age
  • Parent’s work schedule
  • Desire to relocate
  • Poor or neglectful parenting
  • Domestic violence in the home
  • False allegations of abuse
  • Issues at school

Is a change of circumstances always required for the court to modify an existing child custody order?

The divorce court will not modify an existing temporary child custody order without evidence of significant change of circumstances. Divorce courts seek to have only one custody trial and are not enthusiastic about revisiting the custody issue after the fact. Some minor changes, like a change in schedule that doesn’t change the timeshare between parents, may not be considered a change in custody, meaning no modification of the agreement is necessary.

What court hears child custody cases when the parties aren’t married?

Matters of child custody are always heard by the family court, regardless of whether the parents are or ever were married. The family law court acts in the child’s best interest and will attempt to protect the child’s welfare and promote their education no matter what relationship the parents have or once had.

Will the court determine parentage of a child?

Yes, the court resolves matters of paternity and parentage along with child support and custody issues. Family law court has the jurisdiction to determine the parents of a child based on DNA testing. After the determination of parentage is made, questions of custody, visitation, and support will be addressed. Litigation involving parentage is resolved in family court, which has specific statutes, legal assumptions, and a large volume of case law to reach decisions that protect the interests of the child and also conform to common sense.

Can parentage cases impact child custody and support issues?

Yes, paternity may impact the custody and support of children, issues decided by the same California courts as parentage. The courts are guided by the Uniform Parentage Act (UPA) but are not limited by this law in finding a decision.

Are paternity laws based in part on presumptions?

Yes, paternity laws are based, in part, on presumptions. It is presumed that if a wife is cohabiting with her husband, and the husband is not sterile or impotent, that the child of the wife is also the child of the husband.

Talk To A Custody And Parenting Time Attorney In A Consultation

The best way to get specific custody questions answered is to speak with one of our family lawyers in person or over the phone. You can set up an initial consultation by calling our Newport Beach office at 949-430-6952 or by using our online contact form.