Child Custody FAQ
Unfortunately, divorce proceedings often involve child custody issues.
Over the years, we’ve received thousands of questions regarding child custody. Here are some of the most common questions. If you need more assistance, call Los Angeles divorce lawyer Hossein Berenji for a free consultation. We will answer your questions and advise you on a strategy to help improve your chances reaching a fair custody agreement.
- 1 What Can the Court Not Consider When Determining Custody?
- 2 How Does a Child Custody Hearing Work?
- 3 Mandatory Confidential Mediation of Custody and Visitation Disputes
- 4 Does the Court Consider the Child’s Age When Determining Custody?
- 5 Do Courts Have a Preference for Either Shared or Sole Legal Custody?
- 6 What Factors Weigh in Favor of Joint Custody?
- 7 What Factors Weigh Against Me in Obtaining Custody of my Children?
- 8 Does the Fact That I Work a lot and Barely See My Kids Hurt My Chances of Joint Physical Custody?
- 9 Will My Children Be Asked to Testify During a Child Custody Hearing?
- 10 What if my Ex-spouse Lies During our Custody Hearing?
- 11 Can my Ex-spouse use my Social Media Posts Against me in a Child Custody Battle?
- 12 Can a Child Visitation or Custody Order Be Modified?
- 13 What is the Procedure for Modifying Custody and/or Visitation Orders?
- 14 What are Grounds for Child Custody Modification?
- 15 What Do I Have to Establish to Modify Custody?
- 16 What if I Don’t Want Custody or Visitation Modified?
- 17 Can We Just Agree to Change Custody and/or Visitation?
- 18 Where Can I Learn More?
What Can the Court Not Consider When Determining Custody?
When making a child custody determination, the court may not consider the following factors:
- Sex of Parent (See Family Code § 3040(a)(1)).
- Race. The court cannot make a custody determination on the basis of race. (Palmore v Sidoti (1984) 466 US 429, 104 S Ct 1879, 80 L Ed 2d 421.)
- Physical Disability. Pursuant to California Family Code § 3049, the trial court cannot simply to rely on a physical disability as prima facie evidence of the disabled parent’s unfitness or probable detriment to the child.
- Religion. The court cannot not consider religion unless there is a showing of harm to the child. (Marriage of Murga (1980) 103 CA3d 498, 505, 163 CR 79).
- Parent’s Comparative Income. It is impermissible for the court to award custody based on one parent’s economic advantage. If an advantage exists that would be detrimental to the child, the court should make a child support order so that both parents can properly provide for the child(ren).
- Sexual Orientation. A parent’s sexual orientation in it of itself cannot be used to determine custody, unless it can be shown it is detrimental to the child. (See Marriage of Birdsall (1988) 197 CA3d 1024, 243 CR 287).
- Parent’s Sexual Relations. Unless there is compelling evidence that a parent’s sexual relations would be detrimental to the child, it is not relevant when awarding custody.
How Does a Child Custody Hearing Work?
Assuming the parents can’t agree on custody, one of the parents will file a Request for Order: FL-300. The parent commencing the action is known as the Petitioner and the other parent becomes the Respondent. The Petitioner will attach a declaration to the FL-300, which states, under penalty of perjury, the reasons why the Petitioner thinks the Respondent should have less or no custody. Pursuant to California Code of Civil Procedure 1005 (b), the Petitioner must then personally serve the Respondent at least 16 court days before the hearing.
After being served, the Respondent can file a response using a Responsive Declaration To Request for Order: FL – 320. The Respondent must then file and serve those papers pursuant to C.C.P. 1005 (b), which states that “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.”
While the exact steps differ per case, certain events may occur if the parents cannot reach a settlement. First, the parties will go to court. At this point, the court will assign a hearing date. The initial date given by the court is more of a placeholder. When the case is actually heard depends greatly on the complexity of the case. If the matter involves experts, multiple witness, and extensive discovery, the hearing might not take place for a significant period of time.
The next phase typically involves discovery. The discovery phase could involve a 730 custody evaluation, depositions, and pursuant to C.C.P. § 2025.220, that you produce personal documents relevant to the action at the time of deposition. Examples of personal documents often requested includes, but is not limited to, calendars, emails, and financial statements.
This phase can be stressful, as California Code of Civil Procedure § 2017.010 allows for discovery of anything, not protected by privilege, that is “that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”
Whether you’re the respondent or petitioner, you should consider hiring an experienced child custody attorney to assist you.
Mandatory Confidential Mediation of Custody and Visitation Disputes
Pursuant to California Family Code § 3170 (a), in the event of contested custody, the court shall order the parents to mediation. The purpose of mediation is to resolve the contested issues, minimize hostilities between the parents, and fashion a custody order that is in the child’s best interest. The mediation must be set within 60 days of the court making the order.
Meet with an attorney before attending a mediation session. Technically, mediation is confidential and private. However, you do not want to inadvertently say something that could hurt your custody case if you are unable to resolve the dispute during mediation.
Does the Court Consider the Child’s Age When Determining Custody?
Yes, age is one of the factors that a court will consider in determining custody. Under Family Code § 3042, the court can consider the child’s wishes if the child is “of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation…” The court has the discretion to decide if the child is of “sufficient age and capacity”, with most Los Angeles courts setting the age at 12. If the child is 14 years old or older, then Family Code 3042(c) states:
If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interests. In that case, the court shall state its reasons for that finding on the record.
Other factors beyond the child’s age include:
- the child’s health
- the emotional ties between the parents and the child
- the ability of each parent to care for the child
- any history of family violence
- substance abuse by either parent
- the child’s ties to school, home, other relatives in the area, and the community
In Los Angeles, the courts will generally order that the parents share joint legal custody, unless:
- The parents are unable to work together to make decisions for the child.
- One parent is deemed unfit to make decisions for the child, or incapable of making such decisions.
- It would be better for the child for only one parent to have legal custody.
What Factors Weigh in Favor of Joint Custody?
Custody orders are supposed to be based on the following general policies:
- The court must be primarily concerned with the best interests of the child, including the child’s health, safety, and welfare.
- Children are better off when they have frequent and continuing contact with both of their parents.
Thus, in Los Angeles, the courts will generally award joint custody unless there is some reason not to.
What Factors Weigh Against Me in Obtaining Custody of my Children?
You may not be awarded custody if any factors exist that suggest that being with you would endanger a child’s health, safety, or welfare. For example:
- A court may not award custody to a child who was conceived due to the father’s rape of the mother.
- A court may not award custody to a parent who has committed first-degree murder of the child’s other parent.
- A parent who has been convicted of certain kinds of physical or sexual abuse of a child will not be awarded custody unless a judge determines that the parent does not pose a continuing risk to the child.
- A court will often not award custody to a parent who has engaged in abuse of a child, spouse, or partner.
- Habitual abuse of drugs or alcohol by a parent may lead a court to deny custody to that parent.
If allegations have been made against you or if you are concerned for your child’s safety, speak with a qualified family law lawyer today to find out what can be done.
Does the Fact That I Work a lot and Barely See My Kids Hurt My Chances of Joint Physical Custody?
It might. The quality and quantity of time that you spend with your children are both important.
One important factor will be whether your children are neglected when you are not with them.
- What is the quality of the childcare that they receive?
- Is childcare provided by a close relative, such as a grandparent?
- How much time do older children, such as teenagers, spend unsupervised, and have they gotten into any trouble due to the lack of supervision?
All these questions are potentially important issues you should discuss with an experienced Los Angeles attorney.
Will My Children Be Asked to Testify During a Child Custody Hearing?
California Family Code section 3042 allows a child who is 14 or older to tell the court what custody or visitation arrangement the child would prefer, unless the court determines that it would not be in the best interest of the child to testify.
What if my Ex-spouse Lies During our Custody Hearing?
A judge will not necessarily believe allegations that one spouse makes against the other. As a result, judges in Los Angeles often order an evaluation in order to get at the truth.
- child abuse
- substance abuse
- mental health issues
- one parent wanting to move out of state
- questionable parenting practices
- major decisions about the child’s upbringing
The evaluation may be conducted by mental health professionals including:
- social workers
- marriage and family therapists
Can my Ex-spouse use my Social Media Posts Against me in a Child Custody Battle?
Possibly, depending on what you’ve posted. For example, a post that suggests that you’ve engaged in binge drinking, drug abuse, drunk driving, or other dangerous behavior could strongly influence a judge not to let you have physical custody of your child.
Can a Child Visitation or Custody Order Be Modified?
Yes. California Family Code sections 3022, 3087, and 3088 provide that child custody and visitation orders may be modified while the child is still a minor and whenever modification is “necessary or proper” and in the child’s best interest.
Because the State of California has a strong interest in the welfare of children, parents cannot agree in advance that a child custody or visitation order may not be modified. Family court judges will not enforce such an agreement.
What is the Procedure for Modifying Custody and/or Visitation Orders?
One or both parents may file a motion to modify a custody order. They may be required to try to work things out themselves with the help of a mediator before a court hearing is scheduled. Parents may be required to attend an orientation session before mediation.
To make sure they are not forgetting anything, parents may wish to fill out the Child Custody and Visitation Application Attachment. This optional form covers details like:
- where the children will spend which weekends and weekdays
- specific times of day for visitation
- any restrictions on visitation – for example, a child might not be permitted to visit when a parent’s girlfriend or boyfriend with a history of violence or substance abuse is present
- who will supervise visitation, if applicable
- who will provide transportation to the place of visitation or exchange
- whether the parents will come face-to-face when exchanging the children
- whether a parent will need permission from the other parent to take a child out of the county, out of the state, out of the country, or to a specified location
- whether the child is at risk of being abducted
- how a child will spend the holidays
The parent requesting the change will need to explain why the change is necessary. The parent may propose a specific parenting plan for the judge to consider.
At the hearing, the other parent may simply oppose any change or may suggest a different change.
Once the judge makes a decision, the judge will sign a court order either granting or denying the requested change. In some courts, the clerk of the court or another staff member will prepare this order for the judge. In other courts the person requesting the hearing will be responsible for preparing the order for signature.
What are Grounds for Child Custody Modification?
A custody order may be modified based on a significant “change in circumstances.” However, if you’re only requesting a change to the visitation schedule, then only a “best interests” standard must be met, which is a lower standard than “significant change in circumstances.”
As children grow older, their needs and activities will normally change. As a result, parents may wish to modify a custody order in response to these changes every few years.
In ruling on a request for modification, a judge will focus on the best interests of children – not necessarily the best interest of the parent. Custody and visitation arrangements will only be changed if those changes are good for the children.
What Do I Have to Establish to Modify Custody?
As discussed above, you will need to show a significant change in circumstances. Also, the change – or the response to the change – must affect the children, not just the parents.
The person seeking the change has the burden of presenting evidence to show that the change of circumstances warrants a change in custody or visitation. Simply saying “it would be better for the children” generally won’t be sufficient.
Following are some examples of changes in circumstances that may justify changes in custody or visitation:
- The death of the parent with custody of the child will automatically make the other parent entitled to sole custody, unless it’s shown by clear and convincing evidence that would be bad for the child.
- The relocation of a non-custodial parent may be grounds to make visitation longer but less frequent.
- The relocation of a custodial parent may result in that parent being required to pay travel costs so that the child can continue to see the other parent on a regular basis.
- If a custodial parent wants to move away, the court can consider whether the child – especially a teenager – should stay with the other parent in order to continue at the same school and stay involved with the same friends and activities.
- If one parent frustrates visitation and even communications between the child and the other parent, a court may order a change in custody.
- A court can take into account the preferences of a child for a change in custody and visitation, especially when the child is older but even when a child is as young as seven or eight.
What if I Don’t Want Custody or Visitation Modified?
If you feel that a change in custody or visitation is not justified and would not be good for your children, you can make your feelings known at the hearing before the judge. To make a strong case, you should be prepared to present evidence, including the testimony of witnesses familiar with your family situation.
For example, you may wish to call as a witness a psychologist or therapist who works with your child, other family members, or someone from your child’s school.
Can We Just Agree to Change Custody and/or Visitation?
Sure. In fact, it will probably be better for the children if the parents can work things out on their own.
If you need help working out an agreement, you may want to talk to a trained family mediator or facilitator. The mediator or facilitator can also help you write up what you’ve agreed to so that you can present it to a judge to sign.
You can find out more about custody mediation here.
You can find a directory of family law facilitators for your county here.
If parents agree on the modification, they simply need to submit their agreement to the court and get the judge to sign it. Once the agreement is signed, it will need to be filed with the court.
However, often times parents have a difficult time resolving custody and/or visitation issues. If you are struggling to resolve these issues, or if your ex-spouse has already hired an attorney, call our Los Angeles office to speak with a qualified family law attorney immediately.
Where Can I Learn More?
You can learn more about child custody by visiting this page published by the Judicial Branch of California or by speaking to one of our qualified child custody lawyers. If you would like to learn more about changing a custody order, then visit The Judicial Branch of California’s modification page.
Child Custody Resources
Child Custody Information from the California Courts Website
Family Law Info from the County of Los Angeles Superior Court Website
Child Custody and Visitation Info from the Los Angeles Superior Court Website
California Judges Benchguide Custody and Visitation (Revised 2014)