Child Custody & Family Law

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The best interest of the child or a childs best interest is the famous mantra of the family court, which is prevalent in child custody proceedings today, yet its interpretation by the family court or judges is often arbitrary and its meaning is still obscure. Moreover, the law regarding child custody varies from state to state leaving no uniform legal position regarding what is in the best interest of the child. Some states have a preference and presumption towards joint custody while others do not. Some states are amending its law to adopt a preference and presumption for joint custody while others are amending its law to allow joint custody only when the parents agree to it.

Like most states the standard for child custody determination in California is the overall best interest of the child such that it assures the health, safety, and welfare of the child and frequent and continuing contact custody or custody to one parent and therefore leaves the parenting plan decision up to the discretion of the family court or a judge. In 1979, California adopted a presumption for joint custody, but later amended the law in 1994 to allow joint custody only when the parents agreed to it. According to the American Bar Association, other states such as Connecticut, Maine, Michigan, Mississippi, Nevada, Vermont, and Washington also adopted laws in favor of joint custody, but only when the parents agreed to it. Other states such as the District of Columbia, Florida, Idaho, Iowa, Kansas, Louisiana, Minnesota, Missouri, Montana, New Hampshire, New Mexico, and Texas, have laws favoring a presumption for joint custody. In a few other states, joint custody is not specifically authorized.

Regardless of each states position for or against a presumption or preference in favor of joint custody and whether or not it has been specifically authorized, overall there appears to be a growing trend in favor of joint custody and more and more bills being introduced to adopt a presumption for joint custody being in the best interest of the child unless certain circumstances apply, such as convincing evidence that a parent is unfit or it would not be in the best interest of the child to award joint custody.

If you are involved in a child custody dispute, whether it is the initial child custody determination or a child custody modification, you would be wise to consult a family law attorney in your jurisdiction to help you learn what the law and standard for custody determinations is in your area and how it applies to your specific situation. Further you will want to learn what factors the court will consider in determining the best interest of the child so you are fully aware of your child custody rights and responsibilities.

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Attorney selection is critical and in my opinion one of the most overlooked areas in child custody cases. Hiring the wrong attorney can cost you more than just money it can cost you your case. Many people use the wrong attorney what I mean by wrong is an attorney that does not specialize in family law focused on child custody they use the family attorney… you know the guy that does your will or handles the family business actions.

Another big mistake is to randomly pick an attorney out of the phone book without any research. Some attorney’s not all but some are great salesman and that’s all they are, all talk. When it comes down to it they are lazy trust me I hired and fired two. Big mistake!

You need to find the best attorney you possibly can that will take your case. Find an attorney in your area that practices both criminal and family law. One that knows the judge and has practiced in front of said judge, and therefore has an upper hand so to speak when it comes to testimony, evidence and most importantly what the judge will view credible and relevant. You will also be looking for a family law attorney that is both aggressive and savvy.

Before you meet with your selection of attorney’s that meet the criteria listed above you are going to create a list of questions. Try and make sure that you have all of your the facts and questions in order an example of some questions you might pose are. How many child custody cases have handled in the past year? Of those cases how many have you one or lost. What do you believe was the reason for said losses. Would it be alright if I helped with the case as in gathering information, and doing some leg work. Have you handled mostly moms or dads etc…etc…

If the family law attorney is not open to your participation in the case and the reason for his losses are blamed all on the past client and the attorney accepts no responsibility for the loss. The attorney is probably not being completely honest and is just looking to make a buck. Some parents just hire an attorney any attorney and just leave everything up to them. Never ever do that! That is the quickest road to failure, you will need to actively participate-remember it is your life and you and only you know all the reasons why you believe that you deserve the amount of child custody you are seeking.

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Here is a quick fact about child custody and the court system. Pretty much common sense but sometimes overlooked. Everything you say in court is recorded, every affidavit, every argument in a motion, every exhibit submitted becomes part of the court record.

There are exceptions of course, juvenile proceedings, which are closed by law, and some cases can be sealed by judge’s order to protect various interests, privacy and or confidentiality.

Generally however, everything in your custody case is available for anyone to see. If for instance someone for whatever reason is interested in the sordid details between the two parties. It is a very simple thing to access these records (public).

Let’s say that you are getting separated, and can not agree on child custody. Both you and your ex want primary custody, or sole custody, and after let’s say 11 years of being together you just flat out hate each other. You want to raise your children with very little visitation by your ex.

11 years is a lot of time to accumulate ammunition. What should you tell the judge about your ex? Most first impulses will be. 10 years ago she left the children alone to go to the store to buy more alcohol and her sister was arrested for drugs 9 years ago so I don’t want the children around them and so on.

You could really lay it all out for the court, and for everyone else who will read your file. Including possibly your children someday. There are lawyers who do recommend a massive character assassination. After all if your ex actually did these things, then you might have legitimate concerns. The ability to parent, substance-abuse issues, destructive behavior. I believe that dredging up a lifetime of baggage does neither of the parties any good!

After 11 years of marriage, one parent may be really angry, and is going to bring up a lot of irrelevant, highly subjective, unproven, and embarrassing information in an attempt to demean the the other parent. That is a pretty crappy thing to do, and does not bode well for the kids or the custody case. Out of all the the garbage that the parent wants to talk about, the only thing that is relevant is what is in the best interest of the children!

It is far better to take the high road. Stick to the recent facts, and track statutory criteria used by every judge in every custody determination. What is in the best interest of the children? Who is able and willing to meet the children’s needs? Who can offer stability and safety? Who encourages a relationship between the children and the other parent?

Litigants who can answer the above questions with a good answer tend to win child custody. Lawyers who use such questions as guidelines in arguing their client’s cases tend to win as well. That is not to say that highlighting inappropriate conduct on the other party’s part is not sometimes necessary, or that it should never be done.

Be prudent in the mud you sling, sling it only if it is relevant to your child custody case, and only if it is crucial for the judge to know in making a decision!

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