After finishing up the second part of a trial (the first part was in February 2021), of a five-years of litigation, it is a welcome respite to write an article. However, there is no rest for the “weary.” I have a parentage and custody hearing set this month at Lamoreaux Justice Center in Orange County involving a very young child. Some basic custody information:
LEGAL CUSTODY:
Legal custody refers to who makes the decisions about the children’s health, education, and welfare. This includes deciding where the children go to school or whether a child should be in therapy. If the parents share joint legal custody, both parents can ask schools and doctors for information about the children.
PHYSICAL CUSTODY:
Physical custody refers to the time the children spend with each parent on a regular basis. For example, the children may be with one parent on school days and the other on weekends plus a mid-week dinner visit. The parents can split the holidays and vacation periods.
Joint legal custody’ means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” (Fam. Code, § 3003.) ” ‘Sole physical custody’ means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.” (Id., § 3007.) “In making an order for custody with respect to both parents, the court may grant joint legal custody without granting joint physical custody.” (Id., § 3085.) “An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.” (Id., § 3083.)
Sometimes, a judicial officer gives both parents joint legal custody, but not joint physical custody. This means both parents have equal responsibility for important decisions in the children’s lives. Yet, one parent will have primary physical custody meaning the children live with one parent most of the time. The parent who does not have physical custody usually has scheduled time (“visitation”) with the children.
In an initial custody determination, the trial court has “the widest discretion to choose a parenting plan that is in the best interest of the child.” (Fam. Code, § 3040, subd. (b).) It must look to all the circumstances bearing on the [13 Cal.4th 32] best interest of the minor child. (Burchard v. Garay (1986) 42 Cal.3d 531, 534 [229 Cal.Rptr. 800, 724 P.2d 486, 62 A.L.R.4th 237].) Family Code section 3011 lists specific factors, “among others,” that the trial court must consider in determining the “best interest” of the child in a proceeding to determine custody and visitation: ” (a) The health, safety, and welfare of the child. (b) Any history of abuse by one parent against the child or against the other parent…. (c) The nature and amount of contact with both parents.”
In addition, in a matter involving immediate or eventual relocation by one or both parents, the trial court must consider, the presumptive right of a custodial parent to change the residence of the minor children, so long as the removal would not be prejudicial to their rights or welfare. (Fam. Code, § 7501 [“A parent entitled to custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.”].)
Accordingly, in considering all the circumstances affecting the “best interest” of minor children, it may consider any effects of such relocation on their rights or welfare.
[1] The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. (Gudelj v. Gudelj (1953) 41 Cal.2d 202, 208 [259 P.2d 656].)
When it adopted the Family Law Act in 1969, the Legislature specified that custody disputes between parents must be decided exclusively on the basis of the child’s “best interest.” (Fam. Code, §§ 3011, 3040, subds. (a)(1), (b); see Civ. Code, former § 4600, subds. (a), (b).) The statutory “best interest” test, which allows the court and family “the widest discretion to choose a parenting plan … in the best interest of the child” (Fam. Code, § 3040, subd. (b)), “governs all custody proceedings.” (Burchard v. Garay, supra, 42 Cal.3d 531, 535, citing In re B.G. (1974) 11 Cal.3d 679, 695-696 [114 Cal.Rptr. 444, 523 P.2d 244], italics added.)
The Family Law Act further declares that when weighing how parental custody should be arranged in the child’s “best interest,” the court must consider “which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent.” (Fam. Code, § 3040, subd. (a)(1).) That is because “it is the public policy of this state to assure minor children frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child.” (§ 3020)
The paramount need for continuity and stability in custody arrangements-and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker-weigh heavily in favor of maintaining ongoing custody arrangements. (In re Marriage of Carney (1979) 24 Cal.3d 725, 730 [157 Cal.Rptr. 383, 598 P.2d 36, 3 A.L.R.4th 1028]; Burchard v. Garay, supra, 42 Cal.3d at p. 541.)
The Family Code specifically refrains from establishing a preference or presumption in favor of any arrangement for custody and visitation. Thus, Family Code section 3040, subdivision (b), provides: “This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.”
Similarly, although Family Code section 3020 refers to “frequent and continuous contact,” it does not purport to define the phrase “frequent and continuous” or to specify a preference for any particular form of “contact.” Nor does it include any specific means of effecting the policy, apart from “encouraging parents to share the rights and responsibilities of child rearing.”
“[I]n view of the child’s interest in stable custodial and emotional ties, custody lawfully acquired and maintained for a significant period will have the effect of compelling the noncustodial parent to assume the burden of persuading the trier of fact that a change [in custody] is in the child’s best interests.” (Burchard v. Garay, supra, 42 Cal.3d at p. 536.)
A child should not be removed from prior custody of one parent and given to the other ” ‘unless the material facts and circumstances occurring subsequently are of a kind to render it essential or expedient for the welfare of the child that there be a change.’ ” (In re Marriage of Carney, supra, 24 Cal.3d at p. 730.) In a “move-away” case, a change of custody is not justified simply because the custodial parent has chosen, for any sound good faith reason, to reside in a different location, but only if, as a result of relocation with that parent, the child will suffer detriment rendering it ” ‘essential or expedient for the welfare of the child that there be a change.’ “
This construction is consistent with the presumptive “right” of a parent entitled to custody to change the residence of his or her minor children, unless such removal would result in “prejudice” to their “rights or welfare.” (Fam. Code, § 7501.) The dispositive issue is, accordingly, not whether relocating is itself “essential or expedient” either for the welfare of the custodial parent or the child, but whether a change in custody is ” ‘essential or expedient for the welfare of the child.’ “ (In re Marriage of Carney, supra, 24 Cal.3d at p. 730; see also In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1344 [33 Cal.Rptr.2d 871] [In case involving joint physical custody, “[i]n deciding whether it is in the child’s best interest to change custody [when one custodial parent seeks to relocate with the minor children], the trial court should ask itself whether the custody change is ‘expedient-essential-imperative.’ “
Each case must be evaluated on its own unique facts. Although the interests of a minor child in the continuity and permanency of custodial placement with the primary caretaker will most often prevail, the trial court, in assessing “prejudice” to the child’s welfare.. Where appropriate, it must also take into account the preferences of the child. (Fam. Code, § 3042, subd. (a) [“If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.”].)
When a custody dispute arises, the court must weigh the child’s “best interest” even where that may affect a parent’s freedom, travel, lifestyle, and economic interests.
In re Marriage of Ciganovich, supra, 61 Cal.App.3d at p. 294 [“a custodial parent’s attempt to frustrate the court’s order has a bearing upon the fitness of that parent”].) Even if the custodial parent is otherwise “fit,” such bad faith conduct may be relevant to a determination of what permanent custody arrangement is in the minor children’s best interest. (In re Marriage of Ciganovich, 61 Cal.App.3d at pp. 293-294; Fam. Code, § 3040, subd. (a)(1) [“In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent ….”].)
Joint legal custody’ means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” (Fam. Code, § 3003.) ” ‘Sole physical custody’ means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.” (Id., § 3007.) “In making an order for custody with respect to both parents, the court may grant joint legal custody without granting joint physical custody.” (Id., § 3085.) “An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.” (Id., § 3083.)
Initial custody orders are critical for many reasons but what is clear is that it sets the “foundation” for how the custodial arrangement will be in the future. Another key take away is that the court as many of you probably understand and agree, favor both parents to be present and active in the children’s lives and as such, co-parenting and cooperation between the parents is not only good for your children but will be required by the court. Any questions, email me at [email protected] or call my office at 310-601-7144.