How is child custody decided?

Presently 50/50 custody is presumed as best for the children, but there are several factors that can be taken into account, including recommendations by a counselor at Family Court Services.

By Georgine Brave
January 03, 2007
CA FAQs/Child Custody

If the parties agree on a parenting plan, the judge will make it into an order.  Generally, the parents will share joint legal custody: this means that they both shall participate in decisions about the children's medical and educational needs. Each parent should be listed on the school's forms and each parent can take the children to the hospital, to the doctor, participate in school activities, and so on.

Physical custody, or physical residence, is where the children will live.  If there is a dispute, the parties must see a counselor at Family Court Services. This mediation is free.  The counselor tries to lead the parents to an agreement. If not, he/she will write a recommendation which goes to the judge; about 95% of the time, the judge will follow that recommendation.  The counselor will consider who has been the primary caregiver? Is one home not stable? Do the children have special needs which are better met in one household? What is in the children's best interest?

I watch how fashions in custody change over the years. Presently there is a presumption that 50/50 custody is what is best for the children. That means that the judge wants this kind of parenting plan, unless there is a reason why not. So fathers have the same rights to time with the children as mothers.

The parties can agree to go to a Private Mediator instead of Family Court Services. They will have more time and attention, and a private mediator can even speak with the children. If there is still a dispute, the parties can agree, or the judge can order, that a psychological evaluation be done. This is the most costly method of determining custody.  It will take at least 2 months and will cost $4,000 or more, perhaps $8,000 or more. The psychologist will see each parent, each child, do testing, interviews, review the declarations, talk to outside people, like therapists, and write a lengthy report which tells the judge what is best for the children.

The bottom line is what is best for the children is for the parents to agree on a parenting plan.

If a parent has concerns about this issue, he or she should talk to a family law attorney. In my 22 years of experience, it has been clear that the custody and visitation issue is the most important issue in my client's mind. Our telephone consultation is free, so if you meet anyone who has any questions, we will be happy to answer their questions and perhaps set their minds at ease.


Georgine Brave is a San Diego divorce lawyer dedicated to assisting her clients through the family-law process with understanding and support. Brave, Weber & Mack offers family lawyers with knowledge, experience, and strong advocacy skills to support clients through any divorce issues.

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January 03, 2007
Categories:  Child Custody|FAQs

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