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Custody and Visitation
A parenting plan can often be the most difficult issue to resolve as parents separate. Smith, Smith, Blonska & Strunk works with their client to effect a plan which will be for the best interests of the children, while still promoting the parents' ability to maintain a relationship with the children, including frequent and continuing contact with them. Of course, where the best interests of the children would be impaired by spending time with a parent who, for a variety of reasons, would not provide appropriate parenting, then we help our clients in adjusting custody plan toward the better parent. These issues are often emotional, and can have a lasting impact on the permanent relationship between parent and child. It is therefore important that an attorney be chosen that is aggressive, sensitive, and effective.
Custody cases are grueling. It is no accident that they are called “custody battles.” The only way to go into a custody case is to prepare for the fight of your life. Any conduct less than saintliness that related to the children may come out in courtroom testimony. No other litigation is more draining. Custody cases are probably the most expensive area of family law litigation.
A court works from the following laws and principles, among others, in regard to custody cases:
- The legislature’s finding and declaration that it is the public policy of California to assure children of frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities of child rearing to effect this policy. [Family Code, 3020]
- If a child is of sufficient age and capacity to reason and form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an award of custody or modification thereof. [Family Code, 3042]
- The court shall consider, among other factors, which parent is more likely to allow a child frequent and continuing contact with the other parent, and shall not prefer a parent as a custodian because of that parent’s sex. [Family Code, 3040]
CALIFORNIA LEGAL PHILOSOPHY OF PARENTING
The court in the Marriage of Carney set out the basic philosophy of California law with regards to custody:
“The essence of parenting is not to be found in the harried rounds of daily car pooling. Rather, its essence lies in the ethical, emotional and intellectual guidance the parent gives to the child throughout his formative years, and often beyond. The source of this guidance is the adult’s own experience of life; its motive is parental love and concern for the child’s well-being; and its teachings deal with such fundamental matters as the child’s feelings about himself, his relationship with others, his system of values, his standards of conduct, and his goals and priorities in life.”
ACTIONS TO TAKE IN A CUSTODY CASE
The following advice is based on many years experience in handling custody cases. Following this advice can increase your chances of a favorable result and save you many dollars in attorney’s fees by eliminating issues that could be used against you.
- Follow the court order completely, irrespective of any violations of the order the other parent may be committing.
- One of the key issues in a custody determination is which parent is better able to share the children with the other parent. Make sure that you have done everything in your power to ensure that all of your children go to every visitation with the other parent, if you are custodial parent.
- If the children do not currently live with you, make sure that you use all of the time you have available to you with the children, while also putting their needs ahead of your own. Be prompt and dependable about picking up the children for their time with you and delivering them back to the custodial parent.
- If your child asks you to skip an occasional visitation period so she/he can participate in some special activity, you should consider rearranging your time with your child. This is a chance for you to demonstrate flexibility and your willingness to put the child’s needs above your own. Do your best to re-schedule the time with the other parent. If you are the custodial parent, have the child and other parent work out any changes in the schedule that the child seeks. Do not get in the middle—do not come between the child and the other parent. Be flexible to provide another time if possible.
- Keep a detailed diary or calendar of the specific days each child was with you and with the other party. Note the times of pick up and return of the child. Outline activities that were engaged in. Do not pump your children for information. Note the person who picked up or returned your child. If you are receiving or paying child support, note each check number, the date of receipt and the amount of the check.
- If the children do not live with you, do your best to personally pick them up and return your children each time you see them. It is not desirable to have your secretary, friend or relative picking up or returning children, except in cases of great need.
- If you are recently separated from the other parent, it is better if you do not include your new boyfriend or girlfriend in any visitation you have with the children. It is not desirable to have new boyfriend or girlfriend living with you or spending the night with you when the children are present. It can be upsetting to the children and can be made to appear that you are putting your need to be with your new friend above your children’s needs and that you lack good judgment concerning the children.
- If you have been separated for six months or more and have developed a stable relationship with someone else, having that person present during your visiting is somewhat less likely to jeopardize your standing with the judge. (Custody battles are hell on your love life.)
- Be certain to thoroughly investigate the character of any adult friends you permit to be around the children. Anyone known to be a drug user, drug seller, alcohol abuser, child molester or convicted felon should never be permitted around your children.
- Be very careful regarding your driving record and the driving records of anyone whom you permit to drive your children. This is no time to suffer a drunk driving conviction or permit anyone who has to drive the children.
- Always be certain children use seat belts. Car seats must always be used until the child is six years old and sixty inches tall and weighs sixty pounds.
- Be alert to avoid activities which could leave you vulnerable to claims of sexual misconduct with your children. These include bathing with the children, letting them sleep in your bed, and being nude with the children.
- Make sure your home and other places you take the children are safe and childproofed, according to your children’s ages. If you have been keeping guns, ammunition, or other weapons of any kind in a house with children, and especially if this has been a source of conflict between you and the other parent, it would be best to get the guns out of the house unless they are vital to your employment. If they must stay, they should be religiously locked in a cabinet to which the children have no access. Keep your home reasonably clean so you will not be confronted with photos of litter, beer cans, clutter, etc. in your home when you are testifying in court.
- Be aware of the ratings of the movies you permit your children to see when they are in your custody. “PG-13” movies are best shown to children 11 or older. “R” movies should not be shown to pre-teens, unless edited.
- Know your children’s teachers, doctor, school counselors, scout leaders, coaches, etc. These people often make excellent witnesses. Attend school functions and parent conferences. Do not use these occasions to do battle with the other parent. If you possibly can, volunteer to help out at school or with teams, etc. If the other party does not supply you with information on these events, take the initiative to get it done yourself.
- Discourage your children from calling persons other than the other parent “mom” or “dad.” You do not want to do anything that appears that you are trying to take the child away from the other parent or to replace him or her in any way.
- If you have been using corporal punishment or spanking, slapping or hitting a child, stop. You cannot undo your past practices, but the judges do not like to hear of these methods being used and you must find another way to discipline your children. Do not lie about your past actions. Do not belittle, humiliate or berate your children in your methods of discipline. Always strive to increase your child’s self-respect.
- Do not say anything negative about the other parent, his/her relatives or new lover/spouse in front of your children. When you say bad things about the parent, the child is likely to internalize the comment as saying something bad about the child.
- Do everything in your power to boost your child’s self-esteem. Your ability to make your children know that they are special and valued is critical. Do not compare the children to each other or favor one child over another.
- If you have been taking any recreational drugs, stop now. Do not have any paraphernalia in your home. Traces of many drugs remain in your body for a long time, so recreational use even when the children are not present can be very damaging testimony.
- By and large, a witness can only testify to facts which he or she observed personally. You cannot testify to what the children have told you. You can, generally, testify to what the other parent has told you. If your children have told you things about the other parent, his lifestyle or the activities that are engaged in when the children are present, probably the only ways to get this information into evidence are: 1) have the children see a psychologist or a psychiatrist and describe these things; 2) ask the other parent about these incidents and hope he/she admits them; or 3) witness them yourself or attempt to obtain another witness. Make a note of who is present at the time of any significant incident so we will know whom to call as a witness.
- Keep in contact with potential witnesses so that we can find them if they are needed to testify. Make sure you have current addresses, home and work telephone numbers.
- Any mental health professional you may wish to call at trial must be selected with great care. Many excellent counselors do not testify effectively in court. A doctor or psychologist or psychiatrist has better credential for courtroom testimony than does a M.F.C.C. or L.C.S.W. You will be at a tactical disadvantage if your witness has less training or experience than the other parent’s witness.
- If you are seeking a change from a prior custody order after your divorce has become final, the testimony may be limited to events that have occurred after the last custody order. You should concentrate on changes of circumstances since the last order.
- Do not plan to move the children any great distance from their current residence, except under the most necessary circumstances. Do not make any threats of taking the children away so the other party cannot see them.
- Be able to demonstrate to the court through your actions and testimony that you see the children as individuals and not as extensions of yourself. Your ability to show your empathy for your children is very important. Be prepared to demonstrate your knowledge of the needs of each of your children.
- Unless necessary for work, do not put very young children into day care facilities.
- No case has perfect facts. No parent has perfect facts. Every parent has made mistakes. It is of extreme importance to the success of your case that you tell our office the absolute truth about everything related to your case. We can do the best “damage control” if we have the complete facts.
- Do not leave your case preparation notebook in a place accessible to the other parent. It is better to have children unaware that you are keeping a diary of events. If the other parent learns that a diary exists, you might be subpoenaed to produce it.
- When witnesses testify at court, do not be overly friendly or unfriendly to them. It is probably best not to drive to court together, unless the witness is a relative or person very close to you. Do not talk to or hug any friendly witness in the presence of the judge, except for relatives, spouses, or very close friends.
- Children do not usually testify in custody in Orange County, not even in chambers. Most judges feel that a parent who is willing to put his child on the stand in custody case is unlikely to have the child’s best interest at heart.
- Do not ask the children with whom they want to live. It is best not to discuss custody matters extensively with the children, but instead let them know that the judge will make the decision. It is very common for children to tell both parents that they want to live at that parent’s house.
- There are various styles of parenting, e.g. scheduled vs. flexible. Frequently the parents have strong differences in their parenting styles. No one style is better than another, unless the children are experiencing specific problems from a parenting style. The crucial element is to tell the truth. For instance, you might be asked if the children are sometimes in their pajamas until 4:00 in the afternoon. The answer does not make a difference, but if you say “no” and credible witness testifies “yes,” you have lost major ground with the court. If the judge believes you have lied about a minor matter, she/he might be inclined to think you have lied on big issues as well.
CONSIDER YOUR RESPONSES TO THE FOLLOWING STATEMENTS:
- I have the children’s best interests at heart more than the other parent because:
- I am the better custodial parent because:
- The other parent will testify that I am:
- The areas where I am most confident in the custody proceeding are:
- The areas where I am most concerned about this custody procceding are:
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