Most all divorcing parents would agree that custody, visitation, and support orders should all reflect the best interests of the children, and most all parents are also willing to make personal sacrifices for the benefit of their children. However, as the old saying goes, the devil is in the details, because many parents disagree as to what is “best” for the children and also the extent to which they must “sacrifice” for the good of the children.
In short, that is the complex nature of child custody disputes, because no matter how passionately the parents disagree over specific issues, there is usually general agreement on major principles, and this agreement, or at least this acquiescence, often serves as the foundation for a final resolution.
The Temporary Hearing
About two or three weeks after the divorce case starts, most California family law judges hold hearings to make interim orders for child custody, child support, and other important matters. Some of these orders are common to all cases, as most judges routinely direct parties to limit their communication with one another and preserve the status quo (e.g. keep the children in their current school or daycare facility). Verifiable abuse allegations obviously change these boilerplate orders to a considerable extent.
No discovery has taken place at this early stage, so judges must make decisions, and attorneys must make arguments, based on very little information. Some useful evidence at temporary hearings includes:
- School Records: If the children’s grades slip when they are with Father or if they have discipline issues when they are with Mother, the court will probably take these things into consideration
- Witness Testimony: A single teacher, counsellor, or priest is much more valuable than a parade of friends and other “character witnesses.” In fact, that latter technique often backfires, because if one parent has skeletons in the closet, the other parent probably knows about them.
- Medical Records: Some red flags include serious physical injuries, substantial psychological issues, or unstable “doctor shopping.”
There is a very strong joint custody presumption in California law, so absent serious and meritorious abuse allegations, sole custody is probably not an option. If there are concerns, judges often order parents to attend counselling or impose other restrictions.
Depending on the circumstances, the judge may order what is known as a “730 evaluation.” A 730 evaluation derives its name from California Evidence Code § 730. The court will appoint a “child custody evaluator,” as defined by California Family Code § 3110. The purpose of this evaluation is for the court obtain information relevant to a child custody determination. These evaluations are routinely ordered in the event that parents challenge custody on the basis of abuse, drug use, or any other serious allegation.
If the court does order an evaluation and you are self-represented (“pro-per”), you may want to consider hiring an attorney throughout the process. The court is likely to put much weight into the evaluator’s report. As such, you would be wise to have an attorney representing your interests throughout the process.
Prior to a child custody hearing, you are required to attend custody mediation in California. Mediation often has some tangible benefits:
- Civility: During mediation, the parties are in separate rooms for nearly the entire session, so there is much less emotional stress in informal mediation meetings than in showdown trials.
- Control: In a similar vein, the parties, instead of a judge or jury, control the terms of the settlement agreement, a dynamic that often increases voluntary compliance in the months and years to come.
- Cost: Mediation saves time by cutting the case short, and in litigation, time is money.
Mediation is not always successful and is not even always a good idea, but it is usually a worthwhile endeavor, even if one side is less than fully committed to the process.