CHILD CUSTODY

The most disputed and emotional aspect of divorce proceeding is child custody. With the emotions running high on both sides, each parent truly believes that it would be in the best interest of the children to be in his/her custody and the other party is "unfit parent."

California Courts do not use the "unfit parent" standard to determine the custody dispute between the parents. The applicable standard is "the best interest of the child" coupled with the legal presumption that the continued contact with both parents is in the best interest of the child.

To understand the legal maze of custody disputes, you have to differentiate between two types of custody and what they mean:

•  Physical Custody: Which parent has custody and care of the child

•  Legal Custody: The right to make decisions regarding the child education, medical care and upbringing.

Either physical or legal custody can be classified into:

•  Sole Custody: physical and legal rights are under the control of the custodial parent. The non-custodial parent maintains the parent-child relationship through visitation rights.

•  Joint Custody: both parent share the decision-making responsibilities and/or physical control and custody of their children.

Parent gender effect on custody determination

California court system has moved away from the traditional bias of awarding sole custody to the mother. The best interest of the child and the active involvement of a parent in the child's life are now the determinative factors in child custody dispute.

Extramarital affair (spousal cheating) effect on custody determination

In California extramarital affair allegations, even if proven, are irrelevant to child custody determination unless the "spousal cheating" is proven to be negatively affecting the home environment.

Homosexuality effect on custody determination

Homosexuality of a parent is treated in the same way as extramarital affair, i.e., unless the homosexuality is proven to adversely affecting the child's best interest.

Alcohol and illegal drug usage effect on custody determination

In determining child custody, a California Court may also consider the continued and illegal use of controlled substance by a parent. However, the deciding judge may require corroborating evidence that proves the other parent's allegations.

Child abuse and domestic violence effect on custody determination

If proven by clear and convincing evidence that a parent is or was the perpetrator of child abuse or domestic violence against the other parent, a presumption against awarding the sole custody to the perpetrator parent comes to effect in determining child custody dispute.

Mediation

If child custody or visitation is disputed and a California Court is called upon to resolve the dispute, mandatory mediation is ordered before the Court hears the dispute. The mediator is a neutral person whose job is to facilitate communication between the two parent, urge both parties to consider their child's best interest and encourage the parent to refrain the child as a weapon in their dispute.

Mediation is confidential process. In Orange and Los Angeles Courts, the mediator is not allowed to write a report or make recommendations regarding custody or visitation to the Court.

Helpful mediation terminology

Alternate weekend = every other weekend

Standard weekend = Friday evening to Sunday evening

Long weekend = Friday evening to Monday morning

Extended weekend = Thursday evening to Monday morning

Formula to figure out the percentage of non-custodial timeshare :

Calculate the visitation hours per two weeks x 100/ 336 + any additional vacation time and holidays