Child Custody
How much time a child spends with their parents can be a contentious issue for separated parents, particularly when one parent is abusive or has a substance addiction. Even in cases without abuse or a substance addiction, a parent’s ability to follow a parenting plan and care for basic needs like attending school or a safe living environment can result in child custody issues. The Law Office of David Reagan represents clients in contentious child custody disputes with an eye towards a just resolution. Based in Dublin, Mr. Reagan handles cases in Alameda County, Contra Costa County, and throughout the Bay Area.
Legal Standards
The court decides child custody matters according to the “best interests” of the child. (Family Code section 3020.) The primary considerations are the health and safety of the child. Also relevant is which parent is more likely to facilitate frequent and continuing contact with the other parent. Because the “best interests of the child” legal standard is so broad, the court has discretion to consider a wide variety of factors in assigning custody rights. Factors include whether the parent consistently shows up for parenting time, their involvement in the child’s life, school attendance, appropriate behavior around children, and their living situation.
In general, “it is the public policy of this state to ensure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.” Accordingly, the court will work with parents who are doing their best to follow the rules and be civil with each other to restore both parents to 50/50 joint custody. This is true even if one parent has been out of the child’s life for a long time.
Under Family Code section 3042, “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.
(c) 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 interest, in which case, the court shall state its reasons for that finding on the record.
(d) This section does not prevent a child who is less than 14 years of age from addressing the court regarding custody.”
As shown in this code section, the child’s preference is not definitive. However, when appropriate, the court will consider it as a factor.
Notably, a finding of domestic violence makes it more difficult to obtain joint custody. If either parent presents evidence showing domestic violence, the court will decide whether to make a finding under Family Code section 3044. Under this section, there is a rebuttable presumption against awarding sole or joint legal or physical custody to a parent who has been found to have perpetrated DV within the past five (5) years. In order to rebut the presumption, the Court must consider:
i. If giving perpetrator custody is in the child’s best interest;
ii. Successful completion of certified batterer’s treatment program;
iii. Successful completion of parenting class;
iv. Compliance with probation/parole;
v. Compliance with Restraining Order; and
vi. No further acts of DV
A person found to be domestic abuser under section 3044 will in all likelihood need a step up plan. Under a step up plan, they will need to show good behavior and consistently follow the child custody order to gradually gain custody time and joint custody rights. Similarly, step up plans are common in cases where one parent had issues because of a substance addiction, like alcohol or drugs.
Modification of Custody
A final child custody order will only be modified when there is a “significant change of circumstances.” (In re Montenegro (2001) 26 Cal.4th 249.) Temporary orders are easier to modify. Temporary orders can be changed if it is in the best interest of the child.
Custody Decisions in Practice
In many superior courts, including Alameda County, the court requires both parties to meet with a court appointed mediator before the judge decides the child custody case. The mediator talk with parties and tries to help them reach an agreement about child custody. The mediator will then write a report and issue recommendations for child custody. The recommendations will either follow the party’s agreement or, if there was no agreement, the recommendation will be what the mediator thinks is appropriate under the circumstances. The report is provided to attorneys, the parents, and the court.
This document is critical for a successful child custody order. Parents should prepare by doing their best to be civil, only accuse the other parent of impropriety when it is serious and relevant to the case, have knowledge about the child and their needs, and be willing to compromise. Good body language and a respectful tone goes a long way. This shows the mediator that the parent is responsible and ready for joint custody. Attorneys are not present in court ordered mediations; however, at the hearing an attorney can challenge the mediation recommendation, agree with the mediation recommendation, or make a new agreement with the other party. Most child custody matters are short cause hearings (10-20 minute), but in a complicated case a long cause mini trial to a judge is available.
Contact Dublin attorney David Reagan for a free consultation about your child custody matter. Mr. Reagan offers affordable fees and reliable services with an eye towards a just resolution of the case.
