Divorce involves a variety of complex legal issues that become even more complicated when children are involved. Establishing a fair and respectful child custody arrangement is the only way to ensure you and your ex can agree on the amount of parenting time you will contribute after you decide to dissolve your marriage. Whether you are on amicable terms or struggling to even communicate, you must work on setting aside your differences and cooperate to develop the right plan for your family.
A thoughtfully crafted child custody agreement not only allows you to remain an active presence in your child’s life but also to continue sharing the responsibility for providing for their needs as they continue to grow. Similar to other states, California courts make child custody determinations based on the best interests of the child. However, this standard is open to the subjective interpretation of the judge, and therefore it can be difficult for many parents to understand what to expect throughout this process.
To learn how a judge will consider the unique circumstances of your family to determine child custody, review the information below, then contact Paula D. Kleinman to retain expert legal representation during this difficult time. An experienced family law attorney who specializes in divorce and child custody agreements can inform you of your rights as a parent and your responsibilities to your child, facilitate civil negotiations between you and the other parent, and help you reach the right resolution for your family. At our firm, we understand the sensitive nature of these issues and offer dedicated, compassionate services to deliver the best outcome in your case.
What Are My Options for Creating a Child Custody Agreement?
In California, you have several options for creating a child agreement that works for your family:
- Parenting Plan
If you and your ex are on good terms and willing to collaborate outside of the courtroom, you can create a parenting plan rather than leaving custody decisions in the hands of a judge. A parenting plan is a written agreement that specifies who will retain custody of the child after the separation or divorce is finalized. You can choose to pursue sole custody if you believe your child is better off in your care, but in the majority of cases, joint custody is the most beneficial arrangement for children.A comprehensive parenting plan should take the unique circumstances of your family into account to create a schedule for the school year, summertime, birthdays, and holidays. It must identify the specific responsibilities each parent will be expected to fulfill in terms of raising the child and select who will make decisions regarding the child’s residence, health care, education, and other needs. You can create this plan on your own or with assistance from an attorney, then present it to the judge for approval to make it binding and enforceable.
California courts strongly recommend engaging in alternative dispute resolution if you and your ex are unable to decide on child custody on your own. This process involves a neutral, third-party mediator who meets with both parents and utilizes conflict resolution skills to conduct a negotiation founded on civil, respectful communication and cooperation. The mediator might meet with both parents at the same time or go back and forth between them to exchange information.Mediation offers several advantages over litigation, including providing the opportunity to reach a faster, more cost-effective resolution that does not require formal involvement from the court. It can lead to creative problem-solving that takes the unique dynamics of your family into account, provides a higher degree of certainty regarding the final outcome of the custody arrangement, keeps the details of your divorce private, and typically encourages a more amicable relationship between both parties moving forward.
When both parents are unable to work together to create a parenting plan or unwilling to undergo mediation, the only remaining option is to litigate their case. This process is lengthy, complex, and requires complying with a number of specific court procedures to achieve a resolution. You will be expected to engage in the discovery process to request information from your ex, ask questions, and share documentation relevant to the case, such as financial, medical, or school records.A judge will preside over a court hearing in which you will both testify about who you believe should have custody of your child and provide compelling reasoning for your argument. They may also ask for testimony from witnesses, including friends, family, and other individuals familiar with the circumstances of your family, or call upon specialists or experts such as child psychologists to conduct custody evaluations.
What Criteria Do Judges Use to Determine Child Custody?
Regardless of which of the above options you choose, the judge will approach the custody determination by presuming that both parents should be equally entitled to custody, meaning they will not demonstrate bias toward either parent. They will not automatically award custody to the mother or father and cannot deny your custody or visitation rights if you were never married or based on your lifestyle, religious beliefs, or sexual orientation. Instead, they will consider a specific set of criteria when making child custody determinations to protect the best interests of the child.
The five primary factors the judge will review are described below.
- The age of the child
There are no across-the-board rules for age-appropriate custody determination, but many states have been implementing an approach that considers the developmental stage of the child to determine their best interests. In the 1930s, Swiss psychologist Jean Piaget began ground-breaking research on mental development in children that continues to inform child psychology today. He discovered that children do not inherently possess the same mental faculties as adults, but throughout their adolescence, they undergo a continual process of acquiring knowledge from their surroundings through a combination of perception, sensation, emotion, and motor skills.Based on his observations, Piaget established a theory of cognitive development that places children in four distinct stages in which later cognitive abilities continue to build upon earlier abilities. After developing schemes around certain types of interactions, children use these schemes to understand how to respond to new experiences and create expectations for novel situations that arise in the future. Piaget’s theory has significantly impacted how we understand child development, and parents can utilize his findings to create the best custody arrangement for each child based on the specific stageStage 1 – Sensorimotor Stage: From birth to two years old, children are in the sensorimotor stage, during which they learn about the world through sensations, reflexes, and motor responses, such as looking, listening, and grasping. They become aware that they are separate beings from the individuals and objects around them and that their actions result in consequences in the world around them. Maintaining the bond between the child and their parents is absolutely crucial for this stage, so it is recommended that they spend as much time as possible with both parents.
Stage 2 – Preoperational Stage: Between the ages of two and seven years old, children progress into the preoperational stage. In this stage, they continue to view the world in primarily concrete terms but begin to think in symbolic terms by using images and language to represent objects. They tend to be egocentric during this time and struggle with the idea of constancy, meaning they can better tolerate separation than during the sensorimotor stage but still require structure, consistency, and regular contact with both parents.
Stage 3 – Concrete Operational Stage: From seven to eleven years old, children reach the concrete operational stage in which they become capable of logical, organized thinking and viewing situations from the perspective of other people. They become less egocentric and realize that their emotions and thoughts are not necessarily shared by others. Children in this stage benefit from spending some time away from their parents and engaging in activities on their own. A custody agreement that gives one parent a majority of parenting time and the other parent frequent visitation may be the best option at this time.
Stage 4 – Formal Operational Stage: Starting around eleven years old, children enter the last stage of development, known as the formal operational stage. During this stage, they develop the ability to think scientifically or approach hypothetical problems with abstract thinking and deductive logic, which allows them to apply general principles to specific situations. They begin to consider moral, social, philosophical, and political issues in the world around them and systematically plan for their future. Children and adolescents in this stage desire independence and forming an identity beyond their role in the family. Parents should be flexible, listen to the needs of their children, and encourage them to offer input when creating a custody schedule. In California, when children aged 14 years old or older are mature enough to understand their situation and express their preferences, the judge will take these preferences into account when awarding custody.
- The existing relationship between the child and each parent
A judge will be responsible for assessing the relationship between the child and each parent to determine the strength of their attachment and how this will impact custody arrangements. Parents must demonstrate that they can create and maintain an environment that allows their children to thrive as they develop. When a child has a strong attachment to one parent that would cause them to experience distress if forced to spend time away from that parent, the judge may agree to an arrangement that gives that parent primary physical custody. However, if a child psychologist or other professional finds this attachment is harmful to the child’s best interests, they will likely recommend shared custody and potentially order family therapy, as well. A parent with any history of domestic violence against the child or the other parent will be refused custody.
- The location of the child’s siblings
In most cases, a judge will attempt to keep siblings together in the same household to foster their support system. Parents that wish to separate the siblings must present a compelling argument for the court that explains their reasoning for doing so and proves this decision serves the best interests of the child. If keeping the siblings together poses a risk to the child’s safety, such as siblings that bully or abuse the child, the judge might order the child to reside with the other parent because they are better equipped to meet the child’s needs and avoid the potential for damaging conflict.
- The physical and mental fitness of each parent
The physical and mental fitness of the parents is extremely significant in custody determinations, as a parent who struggles with mental health disorders or substance abuse can be ill-prepared to fulfill their parental responsibilities and may make decisions that go against the best interest of the child. Judges can order therapy or counseling, or even mandatory drug testing and supervised visitation to ensure the parent can safely care for their child. If a parent allows sexual partners into their home or spends time with criminals, the judge can restrict the parent’s contact with these individuals during the time the child is in their custody.Along with mental fitness, physical fitness also impacts a parent’s ability to provide proper care for their child. Keeping up with children, especially young children, is a demanding task, and a parent’s untreated health issues or disabilities may prevent them from sufficiently caring for the child. Studies have shown that children of chronically ill parents, in particular, tend to experience more problems with physical, cognitive, and social functioning, demonstrate more behavioral issues, and underachieve in school. Because of these potentially harmful effects, poor physical health can be grounds to award custody to the other parent.
- The caretaking capacity of each parent
Finally, a judge will assess the caretaking abilities of each parent to determine who has the capacity to financially, physically, and emotionally support the child throughout their development. Family support in the form of grandparents or other relatives that offer help with finances or childcare responsibilities is an important consideration. Ultimately, the judge will work to maximize the time parents spend with their children while keeping the child’s best interests as the main priority. For example, a parent with a job that makes it impossible for them to watch their child before or after school hours and no family support may only be awarded partial physical custody during the summer, and the child would likely reside with the other parent during the school year.
Protect Your Child’s Health and Well-Being
If you want to ensure you are fully prepared to navigate your child custody case, contact Paula D. Kleinman today. She is one of the most respected and highly sought-after family law attorneys in San Diego County and has more than 20 years of experience helping her clients reach fair child custody agreements. Our firm provides compassionate, dedicated legal services to determine the specific needs and goals of your family and develop a comprehensive solution to effectively meet these needs and accomplish these goals. We possess in-depth knowledge of how child custody orders work in California and can thoroughly explain your rights and responsibilities, as well as how the law applies to your specific case.
To create the best child custody agreement that serves the best interests of your child, contact Paula D. Kleinman to schedule an initial consultation. Whether you and your ex are willing to engage in mediation to develop a parenting plan, or you require litigation to resolve child custody, she has the expertise and skills to guide you through the process and deliver the optimal outcome in your case. She also remains in regular communication the entire time, so you are always aware of how your case is progressing and what to expect at every stage.