For the most part, California family law courts believe both parents have equal rights to their children and support a 50/50 custody split. Parents create a child custody agreement and visitation calendar that afford children even time with each parent when that happens. Child support becomes a non-issue unless there is a dramatic discrepancy in the quality of life between households. 

That said, child custody battles abound. And that is where the courts become involved. 

California Child Custody Basics 

Before we begin, let’s review legal child custody basics: 

• Legal custody: This refers to who makes important decisions for your children (like health care, education, and welfare). In most cases, this is split 50/50 between both parents, regardless of who the child(ren) lives with. Both parents’ signatures are required for any legally relevant documentation. 
• Physical custody: This refers to who the child lives with, and it is split in various ways. 50/50, 80/20 (the every-other-weekend setup), 70/30 (every other weekend and one night per week), and so on. 
• Joint custody: This is when both parents share the right and responsibility to make important decisions about the children’s health, education, and welfare. 
• Sole custody: Sometimes the court awards (or parents agree to) only 1 parent has the right and responsibility to make the important decisions about the health, education, and welfare of the children AND the children live solely with that parent. 
• Child support: Child support depends largely on who has the child more often. Unless there are major income discrepancies, child support is not awarded in 50/50 custody splits. 

Seek Child Custody Mediation Whenever Possible 

After more than four decades in family law, I cannot tell you how devastating child custody battles are to witness and take part in. The bottom line is that unless you truly feel your child’s wellbeing is compromised (physical, verbal, emotional abuse, or neglect), these battles do a tremendous amount of harm to the children. Only proceed if you are doing it for them – and not your ego! 

Whenever possible, work with a family law professional who specializes in divorce and child custody mediation. Using the mediation process, family law attorneys serve as completely neutral parties. We listen to both sides, help you find common ground that supports the well-being of everyone involved and the bigger picture, and can provide recommendations based on how we suspect a judge would decide regarding any given scenario.  

Read Why Divorce Mediation is the Best Way to Handle Child Custody for more on that topic.  

Also, it’s worth pointing out that successful mediation saves clients thousands – or tens of thousands – of wasted dollars on traumatic and emotionally stressful court battles. 

5 Factors That Affect Child Custody & Visitation 

If you DO opt to go to court, here are the factors the judge evaluates when reviewing your case and your child’s best interests (ren). 

The child’s best interest 

This has nothing to do with who the child is closest to, but more about his/her wellbeing on all counts. For example, if there is a documented history of physical or emotional/verbal abuse, the judge reviews that. If your family has worked with an MFT or mental health professional who strongly believes one parent is less fit to have custody of a child, his/her records may factor into this equation as well. A child’s academic or behavioral records may also come into play if they are relevant or a school counselor/administrator has valid insight. 

History of drug or alcohol abuse 

Be very careful when pursuing this unless things are clean on your side of the street. Never accuse the other parent of alcoholism or drug addiction unless you have documented evidence or proof – and you aren’t a regular consumer of those chemicals yourself. I’ve seen plenty of parents trying to pin alcoholism on the other parent even though they are daily drinkers themselves. This doesn’t work. The same is true for drugs. “He drinks/uses drugs more than I do!” is not an argument that holds up in court. 

You must truly believe the child’s other parent has an addiction or substance abuse problem and may need to spend thousands of dollars in private investigator fees to prove it if you don’t have evidence of your own. However, if the court rules in your favor, they may recommend supervised visits for now and will offer the other partner guidelines for reclaiming custody. This includes requirements such as joining (and consistently attending) substance/rehab programs, routine drug testing, etc. If the parent compies, s/he earns the right to custody and unsupervised visits back. 

A tween or teen child’s preference 

By the time a child is aged 12 to 14, the courts are more willing to listen to his/her side. If the reason for wanting to move in with one parent over the other has to do with better rules, better food, or easier to get along with, the judge could care less and will still advocate for some type of joint custody.  

If, however, the adolescent or teen can give solid reasons in one parent’s favor, the judge is apt to pay attention and may alter the custody/visitation agreement accordingly. 

The parent works late hours and often travels for business 

In this case, the judge may not rule in your favor, BUT s/he might rule that you have the first right of refusal to have your child when the other parent is at work or on business trips. In that case, you may have your child more often, and that difference will be compensated in child support payments that honor your extra time/expenses. 

Mental or emotional instability 

This is such a hard one. It is hard to prove unless the other parent has a diagnosable mental illness that is known to compromise their parenting/decision-making. For example, depression and high anxiety probably aren’t enough to make your case. Clinically diagnosed and unmanaged narcissism, borderline personality disorder, severe manic depression, schizophrenia, etc., are potential reasons a court might decide in your favor.  

Read Mental Illness & Child Custody…, from bridgestorecovery.com for more about that topic. 

Again, this path isn’t easy because it’s difficult to prove, messy to defend, and exposes confidential information about the other parent. I recommend taking a very compassionate and soft approach if this is truly an issue for your family and your children’s safety/wellbeing is compromised by living with the other parent.  

This is an area where child custody mediation can be a tremendous help. Creating a non-confrontational space where the child(ren)’s best interest is the priority, you may find the other parent willing to create a “for now” custody agreement with you based on their treatment and management timeline. 

Do you need help navigating the possibilities around child custody and visitation? Contact the Law Offices of Gerard A Falzone.