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In a divorce, there are typically four types of issues which are decided—marital status, support (spousal support and child support), child custody, and property division.
Child custody is often the main bone of contention for divorcing couples. Because it directly affects spousal and child issues it acquires increased significance. Each parent feels he or she is a better parent and wants to have sole custody or more custody of the child than the other parent. Regardless of the facts, the issue can become a tug of war between divorcing individuals. Child custody issues don’t go away until the child has turned 18 and this can bring the divorced parties back to court repeatedly.
The court has to balance the interest of the parties and uses legislation as a guide. However, in the absence of clear directive, public policy and discretion of the court (the judge) dictates and drives the process. In the California court system, there is built-in protection in the sense that the divorcing couple has to go through family court. The Office of Family Court Services performs child custody mediation, emergency screening, and evaluation services upon court referral. The law says parents who cannot agree about custody and visitation must go to mediation. It serves as a neutral territory and allows parties to get information and knowledge and work differences out with the help of a trained counselor.
For example, in Santa Clara county, parents go to a Family Court orientation class first to learn about what will happen in mediation. You will get a handbook called “Kids, Court, and You” that will help you get ready for your mediation. The handbook gives information on child custody and visitation, child development, co-parenting and parallel parenting arrangements, and tips on how to avoid arguments.
What happens if the parents can’t come to an agreement during mediation? There is no single magic formula and the following factors are taken into consideration:
• The safety and welfare of the child. Needless to say, a parent with “bad’ history—drug usage or criminal background, for example, will be less favored over the other.
• “Frequent and continuing contact” with both parents and shared parenting. The court also has to take into account Family Code section 3011 which encourages frequent and regular contact with each parent.
Custody orders are primarily of 3 kinds:
• Exclusive custody (“legal” and “physical”) to one parent.
• Sole physical custody.
• Sole legal custody.
Explanations for the above are beyond the scope of this article. It is highly recommended that you work with a competent attorney to handle your divorce if young children are involved.
Madan Ahluwalia is a California lawyer. He can be reached at 408-416-3149. His website is www.ahluwalia-law.com.