Top 3 Questions To Ask A Child Custody Attorney In San Diego

Child Custody in Divorce – How will the court decide how much custody to give to each parent?

First, it depends on the timing of the request for the court to make an order on child custody.  If there is no current child custody order, the court will consider “the best interests of the child.”  The court will fully evaluate this question, but realistically, the status quo will play a part in the court’s analysis.  Prior to the court making an order on child custody, the parents will be required to attend a mediation.  The mediation is usually conducted by a court appointed mediator in the offices of Family Court Services.  If the parties wish, and they can agree on who will pay the costs, a private child Custody Attorney In San Diego may be used.

The mediator’s method may vary, but the mediator will typically get each parent’s input on what he or she would like the parenting schedule to be.  The mediator will ask for facts supporting each parent’s wishes for child custody, including a history of the care of the children.  This may occur while both parties are together at the appointment, or separately.  Regardless, the mediator will most likely unless there are allegations of or proven instances of domestic violence interview the parents together to determine areas of agreement and disagreement.

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The mediator will write a report which is submitted to the court.  The report will detail the discussions with the parents and make recommendations.  There are two types of child custody:  legal custody, and physical custody.  Legal custody means the right to make decisions for the children about their care, upbringing, educational training, religious training, social and recreational activities, medical care and treatment and treatment of emotional needs.  Physical custody means where the children live and who oversees them during the time when the children are in school or with caregivers.

If there is substantial agreement on the issues, the court may issue an order based on the report itself.  If the parties disagree on some or all issues, either party may request an evidentiary hearing in which the court determining child custody will hear directly from witnesses (including possibly the children; see the answer to #3, below).

Second, if the child custody court has already made an order, then the party who wants the order changed must show that there has been a change in circumstances since the last order was made.  The degree to which circumstances must have changed to warrant a change in the custody order is not a black and white matter.

Am I able to move away from the other parent and take the children with me, will this change the child custody?

A person who wants to move to a new location, be it another town, county, or state, does not need the court’s permission to do so.  However, if that person wants to alter the child custody timeshare, court permission is required.  Also, even after the order is made, the order is stayed—or put on hold—for thirty days.

There is also the issue of how far away a parent wants to move.  Even though a person may want to move within the same county, the actual physical distance may be such that the move would be farther than if it were to a neighboring county.  The distinction is important:  if a person is only moving, rather than moving “away,” the move may be accomplished without court approval and the child custody order must still be obeyed without change; if a person is moving “away,” then the court must give the party who is not moving a chance to be heard.

Often, moves make the current child custody regime unworkable for one of the parents.  Previously, a parent who wanted to move away with the child had to prove that the move was “expedient and necessary.”  In 1996, the rule changed to provide that the parent opposing the move has the burden to prove that the move would be detrimental to the child.

In 2004, the rule changed again, and now the court can order that in considering all relevant factors, the change in residence of the moving parent may warrant a change in custody,but not if the proposed move’s detrimental effect on the child’s relationship with the noncustodial parent warrants denying the request to change custody.

If, however, a parent has sole physical custody (which is very rare), then that parent will be allowed to move with the child where he or she chooses, whether the other parent objects or not.

3 Will the wishes of our children be taken into consideration and may they talk to the judge?

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Despite the court’s responsibility to consider the “best interests of the children,” it is frequently the case that no one asks the children what their desires are.  Children are often not interviewed by child custody mediators.  The primary reason for this is the tender age of children who are the subjects of child custody disputes.

But not all child custody disputes involve children who are too young to express a preference about their timeshare between the parents.  That said, the court will still consider whether the court will receive evidence of the child’s preference through their direct testimony, the testimony of a mediator who interviewed the child, or through other means.

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The law provides that a child who is at least 14 years of age “shall be” allowed to testify to the judge about his or her preferences.  This rule is not absolute; the court may determine that it is not in the best interests of the child to have to be involved in the courtroom scene of his or her parents’ divorce case.  In fact, the judge’s preference should be to obtain the child’s input in ways which do not showcase the confrontational atmosphere that is prevalent in the courtroom.  The judge could choose to take the child into his or her chambers and speak informally to the child.

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If you need a Child Custody Attorney San Diego Free Consultation, you should seek the advice of a California State divorce attorney.  The San Diego Divorce Attorney at the Law Office of Michael C. MacNeil have many years of divorce law experience and will competently represent your family law case.  Please call for a no-cost divorce attorney consultation at (858)922-7098. We look forward to helping you with any of your questions about divorce in San Diego.

This blog post is not intended as legal advice and should be considered general information only.

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About Michael MacNeil

Michael C. MacNeil is a San Diego Family Law and Criminal Defense attorney. With a Juris Doctor degree from the University of San Diego School of Law, MacNeil has a solid understanding of our justice system. As a member of the State Bar of California, MacNeal can practice before all courts in the state. MacNeil believes that the law should be accessible to everyone, regardless of their financial status. With over 20 years of experience, Michael C. MacNeil is passionate about the law and will work tirelessly to get the best possible outcome for you. Call Mr. MacNeil at 858-922-7098.