Keeping The Best Interests Of Your Children At The Forefront
For those dealing with custody and visitation issues, whether you are going through a divorce or are unmarried, here are some basic rules on how Orange County courts determine custody and visitation in a divorce. First, let me say that as a father of three children I understand the need to have a continuing good relationship with your children. And, if the relationship has already been damaged, you will want frequent contact to repair and restore the relationship. I commend you. The fact that you want to have an ongoing relationship with your children is wonderful. I hope you find the information below helpful.
The Court Factors For Determining ‘Best Interests’
The first and primary factor in any custody or visitation court order is the children’s best interest. Courts will take all the evidence and must make a determination in the children’s best interest. To determine what is in the best interests, courts must consider any “factor it finds relevant.” It also must consider the following:
- The health of the children
- The safety of the children
- The welfare of the children
- Any history of child abuse by anyone seeking custody
- Any history of domestic abuse by anyone seeking custody
- Nature and amount of contact with both parents. This means that the courts will look to see what the status quo has been and if one parent has been absent from the family home. Courts will often want to know who has been the primary caregiver, if parenting duties have been shared, the amount of time each parent has spent with the children, and the general emotional ties between the parents and the children. Courts will also look to how a parent’s job interacts with the children’s schedules
- Habitual or continual use of illegal drugs, alcohol or prescription medication
- Another factor in custody or visitation orders is ensuring that the children have frequent and continuing contact with both parents. If this factor conflicts with the best interests, the courts will look to ensure the children’s health, safety and welfare
Additional Factors Orange County Courts Use In Determining Custody And Visitation
There is no preference or what the courts call “presumption” under California law for sole or joint custody. If the parents agree to joint custody, the courts generally presume that joint custody is in the child’s best interest. This presumption is important if either parent later wants to change the order as it affects the burden of proof or the evidence you will have to present to the court before changing a joint custody order. Here are some other considerations:
- Children will be kept together with their siblings whenever possible, unless there are extraordinary medical, emotional or educational needs.
- The court cannot make a preference based on a parent’s gender. The “tender years doctrine” is no longer the law in California. The tender years doctrine was a legal principle that favored mothers as the primary caretaker of the children.
- Children’s preferences. If a child is of sufficient age and can form an intelligent preference regarding custody, the court must give weight to the child’s wishes and take them into consideration. There is no specific age for when the court can take into consideration the children’s wishes.
- For modifications, the child’s wishes are given even greater weight. You may have heard that when a child is 14 they can tell the court whether they agree to the custody and visitation orders. That is incorrect. The rule is that if a child is 14 or older and wants to address the court, a court must hear that testimony, unless the court determines that testifying in court is not in the child’s best interest. But, a court may allow a child under the age of 14 to address the court about custody and visitation preferences, if the court determines it is in the child’s best interest.
As you can see, everything a court does regarding child custody and visitation is haloed by the best interest standard.
Requesting Temporary Custody And Visitation Orders
A divorce takes time. Though a divorce can finish in six months, a divorce can take longer if there are disagreements over one or more issues. If there is a need for a trial, even longer. During this time, parents should try to come to an agreement on parenting issues. If an agreement cannot be reached, one parent will need to seek temporary orders. This will be a very important request because temporary custody orders have a significant impact on permanent orders. The children’s need for stability and continuity is always a major factor in custody orders. So, make sure that you hire an experienced Orange County child custody and visitation attorney to help you prepare your request. If you are going to do it yourself, make sure that you prepare your paperwork with all the key facts so the judicial officer can make the right decision.
Orange County Court-Ordered Mediation
When you ask a court for temporary orders in Orange County, you will be required to attend mediation. It will be court-ordered, so attendance is mandatory. Mediators sometimes exert pressure to come to an agreement, and there are times that mediators will have their own biases and opinions come out. It is important to be prepared for these mediation appointments. In counties, where the mediator makes a recommendation to the court when an agreement is not reached, preparation is even more important. In Orange County, mediators will not testify, but they can make recommendations to the court. If there is sufficient cause, the mediator can also refer your case to child protective services, or recommend a child custody evaluation or a child custody investigation. So, being prepared for the mediation is very important. One way to be prepared for an Orange County court-ordered mediation is to read the Orange County Parenting Guidelines. Do more than reading it, study it, so you are properly prepared. Your attorney cannot attend mediation with you, so your attorney should also help you prepare.
What Happens If Mediation Does Not Work?
If mediation does not work, you will have a hearing to present your case as to why temporary and custody visitation should be ordered in the way you want. Up to the hearing and sometimes at the hearing, you may be urged to settle either by the attorneys, including your own, or the judicial officer may hint or suggest that the parties reach an agreement.
Sometimes, the judicial officer will want to take the attorneys in chambers (usually his office behind the courtroom) and try to encourage settlement. It is important to understand what you want and the chance of getting what you want. An experienced custody and visitation attorney will help you weigh the pros and cons.
Strategy is key. You must take into consideration what evidence and facts will be available for the judge to decide in your favor. Remember, it’s about the facts, it’s not about your opinion. It is not about the opinion of your attorney. It is all about what the judge thinks about what you want and whether it is in line with the children’s best interest.