Albert and Shannon have decided to get a divorce. Their friends and family are not surprised, as both parties have been unhappy for a while now. Unfortunately, their attitude towards each other during the divorce is equally predictable.

Shannon is determined to have both legal and physical custody of their two young boys and give Albert as little visitation as possible. Albert concedes that seeking primary physical custody is neither realistic nor in the best interests of the children, as his job requires him to travel at least one week out of every month. He still wants shared legal custody, though.

So what's the solution?

In California, if a divorcing or separating couple cannot agree on a custody and visitation arrangement, a judge will make the decision, with the only legal guideline they must use being the best interests of the children. Unlike child support, California courts don't have a formula they use to determine child custody.

California Family Code Section 3020(a) is the starting point all courts use when determining child custody. It specifies that it is California public policy for judges to make the health, safety, and welfare of the children the primary concerns when determining which custody situation is in their best interests. In the case of Enrique M. v. Angelina V. (2009), the United States Supreme Court endorsed the best interest standard for resolving custody disputes and held that California trial courts are required to resolve such disagreements in the best interest of the child.

What Are The Potential Custody Orders?

There are two types of child custody:

• Legal, which refers to the ability to make decisions about where the children live and go to school and what healthcare treatment they receive.
• Physical, which refers to which parent the children live with.

Sometimes the courts will give parents joint legal custody but award physical custody to only one parent and give the other one visitation. (This is Albert's preferred arrangement.) This outcome may be recommended for babies and smaller children who might find the routine of frequently traveling between homes to be too distressing. With older children, the court may order joint physical custody too.

To determine what custody arrangement is in the best interests of the children, the court will review factors such as:

• The ages of the children
• Their health
• The emotional connection between the parents and the children. Are they closer to one parent than the other?
• The ability of the parents to care for the children. Is one of them working 18-hour days, forcing them to be away from home most of the time?
• The children's ties to their home, school, and community where they currently live
• Any history of domestic violence or substance abuse in the family

In the past, California courts tended to favor the mother in custody arrangements, especially if the children were young. Today, this material presumption no longer exists. California Family Code Section 3020(b) states that unless circumstances recommend otherwise, the children should have frequent and ongoing contact with their parents after a divorce or separation and that both parents should share child-rearing responsibilities.

Family Court Services Mediators

Because Albert and Shannon are litigating the matter of child custody, they must meet with a Family Court Services mediator first to see if working with a supportive but neutral professional can help them resolve their disagreement. In some counties, such as Los Angeles and Santa Clara Counties, mediation sessions are confidential and the mediator does not make any recommendations to the court. However, in San Diego and Riverside Counties, they will make recommendations that the judge may take into account when deciding what outcome is in the children's best interests.

What if Neither Parent Can Care for the Children Properly?

In some cases, awarding custody to either parent would be detrimental to the children's well-being. What if Albert was away more than one week during the month and asking for a schedule change at work negatively affected his ability to support his family? What if Shannon, at the same time, had a substance abuse problem?

In this case, the court may opt to give custody to another party who has expressed a willingness to care for them, such as a grandparent or other blood relative. This person is known as a guardian.

At Ahluwalia Law P.C., we understand that child custody disputes are the most stressful and emotionally draining aspects of a separation or divorce. Attorney Madan Ahluwalia will help you protect your rights as a parent and fight to maximize your time with your children. To schedule a confidential consultation, please contact us.