Who Decides: You or the Judge?

Judge Roderic Duncan provides an easy way to understand the process of custody, what will happen if you and your spouse are not able to reach a custody agreement privately through mediation or collaborative programs, and the advantages of using alternativ

By Judge Roderic Duncan
Updated: August 12, 2014
Child Custody

You and your spouse should be able to resolve the issues of custody and visitation privately or through mediation or collaborative programs. But if you can't reach an agreement on your own or through one of these resources, the only alternative is to have a judge make the decisions for you.

The judge is given one test to apply: What is in the best interest of the child? The best interests of the parents are irrelevant.

Take the case of a mother who has primary custody of a child and plans to remarry a man who lives 1,000 miles away. She wants to take the child and move to be with her new husband. The child's father protests that his weekend visits with the child would be impossible. If the move is allowed, the child will have to change schools, lose friends, and see the father only irregularly. Situations like this have become more frequent in recent years as our society becomes more mobile and employers transfer their employees around the world.

I have decided many cases with similar themes, some for the parent who moved, some for the stay-at-home parent. In one case in which I denied a move similar to the situation described above, the mother canceled the wedding to avoid losing substantial time with her child.

Be aware that when you take child issues to court, you are turning over complete control of major elements of their future to a judge who doesn't know you or your children. In most cases, the judge has had little or no training in child development or psychology.

And also bear in mind that any agreement that brings goodwill for people who will always be part of your family is miles ahead of something a judge imposes. As your child grows and changes, it will be much simpler to modify an agreement that the parents are able to reach on their own.

For example, you may want to take your children on a special extended vacation some day. It will be much easier to arrange if there is a history of agreements of this type between you and your ex. But without an agreement, the matter must be settled by a judge. And that will involve legal maneuvering, including preparing documents that will get you on the court calendar, gathering evidence supporting your request, and appearing at a hearing in court. Lawyer fees for such a matter will normally exceed $2,500.

Mediating the Issues

One of the prime benefits of using methods other than court to resolve parenting issues is that they promote more realistic custody plans. There are some mediators who specialize in doing this as part of the divorce procedure.

Experts disagree over whether children should participate in the custody phases of divorce mediation. Of course, the maturity and temperament of a child will control the answer in many cases. Discuss this subject with your mediator, who may have some standard practice for dealing with it. Obviously, children should not be burdened with decisions that should be decided by their parents. But discussing various custody and visitation schedules with children who are sufficiently mature may help avoid problems that could sabotage a plan for reasons parents might not anticipate.

Even if the children don't participate in the actual mediation, some experts feel that it can be important to have a mature child present when the final mediated agreement is signed. It can provide a sense that, despite lingering hopes a child may have, the marriage is really over, but that Mom and Dad are still taking care of them.

Using Evaluators

An expensive, but often effective way to avoid a custody battle in court is for you or your lawyers to agree on a neutral expert to do a custody evaluation and make a recommendation to the court. The cost often exceeds $5,000.

Most large communities have a corps of private mental-health professionals -- psychiatrists, psychologists, clinical social workers, and counselors -- who will do a study and interview family members, school representatives, and the child before recommending a particular custody plan. Home visits during which the expert observes the child at the home of both parents are normally included.

The advantage of using this resource is that an evaluator is able to look at the situation with a fresh eye and with the knowledge imparted by studying family dynamics and child psychology. Several people who have been through the process have told me afterward that, in addition to learning about their child's needs, they received a very helpful analysis of their own personality.

Sometimes a judge will appoint an evaluator on his or her own. And most divorce lawyers know this territory well, and often will agree on a person to do an evaluation. However, a parent is not required to accept a recommended plan, and sometimes will oppose it. This may require hiring a competing expert to challenge the recommendation of the first expert, a move that is rarely successful.


Judge Roderic Duncan presided over thousands of divorce cases over a period of 20 years. The Family Law Section of the California State Bar named him Judicial Officer of the Year. He now teaches family law to law students and new judges. This article has been edited and excerpted from A Judge's Guide to Divorce: Uncommon Advice from the Bench (Nolo, 2007).


For more articles on child custody, visit http://www.divorcemag.com/articles/Child_Custody.

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March 20, 2009
Categories:  Child Custody

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