Family law is changing rapidly in California and every other state, so if you are involved in a dispute over child custody, you must have the help of an experienced family lawyer who stays abreast of current court rulings and related legal developments. In some California divorces, experienced family law attorneys can help divorcing parents resolve a child custody disagreement in arbitration or in mediation proceedings and without the need for a trial.
Unfortunately, in other California divorces, custody and visitation may be aggressively contested, and a parent will need the counsel of an experienced Long Beach family law attorney. Nothing is more important than your children. If you are divorcing with children in California or any other state, and you want custody of your child or children, there are some mistakes you simply cannot make. Those mistakes are listed and discussed below.
According to Doreen Yaffa, Florida Board Certified Family Law attorney in Boca Raton, Florida, “You don’t really ‘lose’ your children in a divorce or a paternity action. The term ‘child custody’ is no longer used by the state judicial system in divorce cases involving minor children. As of 2008, changes in Florida divorce and marital laws invoked terms such as ‘time sharing’ and ‘parenting plans’ when discussing the children, their visitation and other issues related to their upbringing and general welfare after their parent’s divorce.”
Dan Thorne, founder of the PRAXES parenting program and a Licensed Marriage and Family Therapist, has worked with many families in the process of divorce, from separation through the ongoing squabbles between parents over their children. “Child custody is determined by the parent’s ability to provide what’s termed, ‘in the child’s best interest.’ Most parents want some form of legal and physical custody, to be part of their child’s life. But unfortunately, that doesn’t always end up to be the case,” Thorne says.
He explains that “One reason for the loss of child custody is that a parent relinquishes rights and just phases out of the child’s life, due to personal problems or unwillingness to take on the challenges of parenting. Another reason is the parent’s inability to care for the child, due to a criminal record, a history of drug or alcohol use, or a history of physical abuse and/or neglect of the child. A final reason is because the parents’ animosity towards each other is so intense that one parent says, ‘I give up’ and walks away from the child to avoid contact with the other parent. There are numerous examples of these happening with either the mother or father, which leaves one parent taking both roles and dealing with the struggles of being a single parent.”
“Luckily, loss of custody doesn’t have to be permanent,” Thorne says. “A parent who once was negligent can rehabilitate themselves and have the courts reconsider their situations, or vice versa. Also, as children become older, they can have more say in which parent they live with. Parents need to consider their options carefully during the divorce process, because the decisions they make at that time have long ranging consequences which affect not only them, but deeply affect their children for years to come. Divorce is one of the major traumatic factors which affect children and increases their risk of behavioral problems as they mature.”
From the start, the divorcing parents of minor children should understand that both parents begin the process with joint custody rights and with the same right to pursue custody. The presumption that mothers will inevitably be awarded custody no longer really exists. Actually, today, fathers who seek primary custody of their children prevail in just about fifty percent of the cases. The court’s role in a California custody dispute is to work exclusively for the best interests of the child or children.
Physical custody and legal custody are the core issues in a child custody dispute; their resolution governs how visitation and related matters will be resolved. A parent with legal custody decides where a child lives, attends school, and receives medical care. Physical custody refers to the parent who provides daily supervision. Many divorcing spouses in California eventually settle on joint physical custody so that a child can spend plenty of time with both parents.
Oakland personal injury lawyer Jeffrey Nadrich suggests that when bitterness runs high between divorcing spouses, a custody proceeding can be brutal. Especially if one spouse has experienced some form of abuse or injury while married. Sometimes entirely fabricated accusations are made; more often, exaggerated accusations are made that blow the truth out of proportion. If you want to keep the custody of your children, you need to avoid certain behaviors and even certain appearances. For parents who are seeking custody and for those who anticipate that they will be seeking custody in the near future, here is a list of seven ways that parents often lose a child custody dispute:
NOT BEING THE PRIMARY CARETAKER
In a typical household, one parent takes more responsibility for the children’s basic needs. That parent is considered the “primary” caretaker, and that parent has an advantage in a custody case. If you are not spending time with your child – eating, playing, driving, teaching – you will be at a disadvantage. If you are not actively involved in the raising of your child, you are probably not going to prevail in a custody dispute. There is no more certain way to lose a custody case than to demonstrate to a judge that you are not really very active in the raising of your child.
NOT PARTICIPATING IN TYPICAL PARENTING ACTIVITIES
Along the same line, if you are not currently participating in some kind of typical parenting activities, your likelihood of prevailing in a child custody dispute is low. Do you routinely take part in school conferences and events, or in activities like Little League or Girl Scouts? Do you take your child to the doctor, the library, or the zoo? Do you know the names of your child’s teachers? If these answers are all no, you probably will not become the custodial parent.
HAVING SUBSTANCE OR ALCOHOL ABUSE ISSUES
If a judge even suspects that a parent is involved with drugs or has an issue with alcohol, that parent probably will not be awarded custody. Most judges take substance abuse accusations quite seriously, and any allegations will be examined with random drug testing and psychological evaluations. If you are a parent with a substance abuse issue, seek help now. If your drug or alcohol abuse has resulted at any time in domestic violence, you will almost certainly be denied custody. Parents who are chronic offenders, violent criminals, and those facing years in prison may in some cases actually have their parental rights terminated by a California court.
LEAVING A TRAIL OF NEGATIVE BEHAVIOR
A great deal of personal behavior that in the past was private is not private today. That angry telephone call might be recorded. Evidence of bad parenting – or just bad personal behavior – can now include text messages, photos, videos, voice mails, and emails. Sometimes, that’s precisely the evidence that can sway a judge’s custody decision. If you are prone to impulsively ranting at your children, spouse, or third parties, there’s probably a record of it somewhere, and you will be at risk for losing custody.
EXPRESSING DISAPPROVAL OF THE OTHER PARENT
Judges tend to favor parents who support their child’s relationship with the other parent. According to Dean Tong, an MSc. and Diplomate with the American Board of Forensic Examiners, “Not placing the child’s needs in front of your own and not fostering or nurturing the child’s relationship with the other parent and denigrating or vilifying the other parent in front of the child is in totality legal suicide on your prospect for child custody.”
A parent who is angry, bitter, or critical is poisoning the child’s relationship with the other parent. If you want to show a judge that awarding custody to you is in your child’s best interests, understand the value of your child’s relationship with the other parent and act to encourage that relationship. Obviously, this can be quite difficult in an acrimonious divorce, but it’s what a judge almost always wants to see.
To prevail in a child custody dispute, a parent must act consistently with self-control. A parent who cannot remain calm will be at a severe disadvantage. A judge will remember anger expressed in court. Likewise, a parent who behaves irrationally in front of attorneys, social workers, teachers, or police officers will face a great deal of negative testimony at a custody proceeding. A parent who is dedicated to winning custody must exercise self-discipline and put the child’s interests first.
NOT FOLLOWING SOUND LEGAL ADVICE
A divorce or a custody proceeding is one of the most difficult experiences a person can go through. Whether you seek primary custody, joint decision-making, or a say about the parenting plan, your top priority is making sure that your children – and your relationships with them – are secure. You will need to work with and listen to an experienced and knowledgeable family lawyer with a reputation for excellence and a record of success. In southern California, an experienced Long Beach family law attorney can help you avoid the mistakes discussed here and can also provide the insights and legal services that a parent fighting for custody will require.