How is Child Custody Handled During Divorce Proceedings?

How is Child Custody Handled During Divorce Proceedings?

One of the first things that happens when a couple decides to split up is that they start living in separate places. That seems like the normal course of events. And one of the common issues you hear about when a divorce is finalized is child custody arrangements. But what about child custody during the period of separation? Sometimes, that period can last for a long time.

The number one consideration in child custody under California law is the “best interest of the child.” This is true whether a court must make a determination while a divorce is pending or when it is actually granted.

A separating couple has the right to decide how to manage child custody and rearing. Similarly, they have the right to come to terms on child custody that will endure even after a divorce is granted. The difference is that a court must order the arrangements when the divorce is finalized. Prior to that point, a court will not be involved in child custody arrangements unless asked to do so by either or both parties.

According to California law, when a petition for divorce is filed, it may be accompanied by a petition for a temporary custody order. A petition for custody may also be filed any time after the filing of the divorce petition. If both parties are in agreement as to the custody of the children, the court will usually enter an order granting the temporary custody—so long as their agreement is in the best interest of the child. If the parents do not agree, the court is empowered to grant a temporary custody order based only on the requesting party’s petition. Within 20 days, however, the court will hold a hearing to allow both parents to argue about the appropriateness of the order.

Granting an order of custody based only one party’s request (known as an ex parte order) may only be made when it has been shown that immediate harm to the child may occur or that the child will be removed from the state. In that regard, when granting an ex parte custody order, the court is also required to enter an order to restrain the parent gaining temporary custody from removing the child from the state during pendency of the custody issue.

The attorneys at the Law Offices of Judy L. Burger have extensive experience in family law matters, including temporary and permanent child custody orders. We can help you put your best foot forward in advocating for the best interest of your children. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.

In Deciding Custody, Current Possession Matters

children on beach_edited-1 Statistics compiled by Divorce Peers tells us in two out of three cases children stay with their mother in the marital home when couples split up.  The vast majority of couples (sixty-five to eighty percent depending on the source) either agree at the outset how custody will be arranged or settle the matter during the pendency of their divorce.  About sixty percent of couples agree for the mother to have primary physical custody. Theoretically, courts abandoned the ‘mother is best’ mindset years ago, but it has taken time for the idea to sink in.  In our experience, a mother is still more likely than a father to be awarded primary physical custody of the children if a case goes to mediation or trial, but fathers have steadily gained ground in the last twenty years.  More fathers who want to be an active part of their children’s lives are fighting for that right. The ultimate goal in a custody proceeding is to determine what is best for the children.  A child needs the love and attention of both parents as long as they are fit to be parents.  In deciding what is best for the children under California law, judges will consider many factors, including:
  • The ages of the children,
  • The emotional ties between the parents and the children,
  • The ability of the parents to care for the children,
  • The health of the children,
  • Any history of family violence or substance abuse, and
  • The children’s ties to school, home, and community.
Practically speaking, family court judges will also consider where the children have lived since the couple separated.  For instance, if a father voluntarily left his children with their mother in the marital home and the children have lived with the mother continuously since the separation, a judge may decide the mother is the best primary custodian. Why?  Because a father who holds his children’s best interest above all other matters would not leave his children in a bad situation.  Since he left his children with their mother and allowed them to reside there continuously, she must be a fit and suitable person to care for the children.  In other words, the father’s actions support the mother’s claim that she is the best parent. The point is to take care not to make the other person’s case for them.  If you believe the children should live with you, then take steps to get temporary custody at the outset. At the Law Offices of Judy L. Burger, we will persistently pursue the best outcome possible for you in your divorce or custody proceedings, whether you need to demonstrate the other parent’s faults, or defend such claims.  Judy L. Burger is known for her aggressive representation of clients in high conflict cases in and around the San Francisco Bay and Sacramento areas.  If you are a parent facing a custody dispute, call us today to learn more about how we can help.  Call (415)293-8314 in the San Francisco Bay area or (916)631-1935 in the Sacramento area, or contact us online via our confidential inquiry form.