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When To Go To Court Over Child Custody

There are many moving parts to consider when deciding to contest a proposed or existing custody arrangement in court. It’s important to acknowledge from the start that custody proceedings can be lengthy, emotional and expensive. If taken to court, the parties are putting their custody or timeshare schedule in the hands of a judge. Although judges have experience working out custody schedules for parents and children, they do not know your children as well as you do. Therefore, it’s almost always better to allow parents to come up with their own agreement and settle outside of court. This allows for a tremendous amount of flexibility. If settlement outside of court does not seem like a realistic option, here are some considerations for contesting custody in court.

First, anytime you file a child custody request, the court orders mandatory mediation for both parties through Family Court Services (FCS). Both parties are required to attend. The mediation is hosted by a social worker who is employed with the court. The social worker talks to both parents to get an idea of what each parent wants and why. The social worker then makes a recommendation in a report that is read by both parties, counsel and the judge. Judges give great weight to these reports. Again, this is a stranger to your marriage and relationship with your children who is making a recommendation on child sharing - yet another reason why it’s in yours and your children’s best interest to settle before court.

Next, what are judges looking for when making their final decisions? One is maintenance of the status quo. Changing the current child sharing schedule is presumed to be difficult for the children and parents, so absent a showing that the current schedule is detrimental to the children, the courts will lean towards maintaining that status quo.

Another consideration for the judge is set forth by California Family Code section 3020, which encourages “frequent and continuing contact” between both parents and the children. Thus, a parent who wishes to reduce time for the other parent with the children will face an uphill battle. Again, unless there is a showing of detriment or danger to the children in the custody of the other parent, the court is not likely to reduce time with that other parent. Judges do not like to see one parent pulling the children away from another parent without showing a substantial reason why.

A court will consider the preferences of the children if they are old enough, either in a written declaration, as testimony in court, or by talking to the child in the judge’s private chambers. Any case with past or current domestic violence will not likely result in custody with the parent who was found to be a violent offender.

Many parents become disappointed that the court does not accept their reasons for why they should have more custody over the other parent. These parents can benefit from a well-thought out consideration of how to approach a custody dispute and how to achieve the custody arrangement that’s best for the children. If you have questions or concerns about whether you should contest a custody recommendation from FCS, or your current custody arrangement, contact an attorney at Cage & Miles, LLP for a free 30-minute consultation.