Child Custody – San Diego Family Court Services Attorney
In all child custody cases, the court requires that the parties attend either private child custody mediation or attend a mediation appointment with the court’s mediation wing known as Family Court Services. The mediator will determine whether there are allegations of domestic violence, whether parents have attended the San Diego Family Court Services Attorney mediation in the past, and whether there is currently a court-ordered parenting plan.
Family Court Services Attorney determines the results in the child’s best interests
The mediator will then determine whether the parents are able to reach an agreement on a parenting plan, or if not, whether there are some areas of agreement. After hearing from the parents, and possibly others, and considering any relevant documents, the mediator will write a report which will be provided to the judge.
Preparation for the appointment with the Family Court Services mediator with the parent’s attorney is important. The way in which the family dynamic is described to the mediator will affect the way in which the mediator writes his or her report, which in turn can affect the way in which the judge regards each party’s ability to co-parent.
If domestic violence is an issue between the parents, the mediation session can be accomplished in separate sessions, so the parties do not have to attend the session together.
If one parent lives outside of San Diego County, that parent can conduct the mediation session over the phone. If possible, it is preferable for a parent to attend the mediation session in person. The parent and the mediator can develop a better rapport if they are together in the same room.
In some circumstances, the San Diego Family Court Services mediator may wish to speak with minor children of the parents. Sometimes this is done in order to resolve disputes between what the parents tell the mediator. Sometimes it is to evaluate the effect of domestic violence on the children. Sometimes it is to determine the preference of the child or children of which parent they prefer to care for them.
If a child expresses a preference to live or spend time with one parent over the other and wants to tell the judge that, the mediator is required to inform the court that the child wants to express that preference. A party’s attorney may also so inform the court.
If a child wishes to address the court, the chances of that actually happening depend in part on the age of the child. For example, if the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the court must allow the child to do so unless the judge decides that it is not in the child’s best interests to express his or her view to the court.
In determining whether it is in the child’s best interests, the court should consider: whether the child is of sufficient age to state a preference one way or the other; whether the child is of sufficient age to understand the nature of his or her testimony; whether the child is at risk emotionally (ie., is the child already in therapy as a result of his or her breakdown in a relationship with one of the parents); whether what the child wants to say is relevant to the child custody/visitation (ie., the court will not hear a child’s complaint that one parent does not let him or her watch television); and the court may consider any other factor bearing upon the child’s best interests.
The court may hear from a child under 14 years old, but unlike a child who is 14 or older, the court is not required to hear from the child. The court must conduct an analysis of whether it is appropriate, but it has discretion on whether to allow it.
They act as an evaluator or investigator
If, however, a court decides a child should not testify in a courtroom setting, the judge in the case should provide alternative means of obtaining input from the child. These alternative means may include: participating in child custody mediation through Family Court Services; appointing a child custody evaluator or investigator; hearing admissible evidence provided by the parents, parties, or witnesses in the proceeding; information provided by a child custody recommending counselor; or information provided from a child interview center or professional so as to avoid unnecessary multiple interviews.
If the child’s testimony is not taken, and an alternative means of receiving the child’s input is selected, that alternative means must: be in writing and fully document the child’s view on the matters on which the child wished to express an opinion; describe the child’s input in sufficient detail to assist the court in its adjudication process; be provided to the court and to the parties by an individual who will be available for testimony and cross-examination.
This information will be filed in the confidential portion of the family profile to protect the child. If the judge does decide that the child should give live testimony, he or she still has the power to regulate the manner of receiving that testimony, so as to avoid undue harassment or embarrassment.
The judge may decide: where the testimony will be taken, including the possibility of closing the courtroom to the public or hearing from the child on the record in the judge’s chambers; who should be present when the testimony is take, such as both parents and their attorneys only, only attorneys in the case in which both parents are represented, the child’s attorney or parents, or only a court reporter with the judge; how the child will be questioned, such as whether only the judge will pose questions that the parties have submitted, whether attorneys or parties will be permitted to cross-examine the child, or whether a child advocate or expert in child development will ask the questions in the presence of the judge and parties or a court reporter; whether a court reporter is available in all instances, but especially when testimony may be taken outside the presence of the parties and their attorneys and, if not, whether it will be possible to provide a listening device so that testimony taken in chambers may be heard simultaneously by the parents and their attorneys in the courtroom or to otherwise make a record of the testimony.
If you need a family law Attorney in San Diego for a Free Consultation on Child Custody, you should seek the advice of a California State Family Law Lawyer. The San Diego Family Court Attorney at the Law Office of Michael C. MacNeil have many years of Child custody experience and will competently represent your family law case. Please call for a low-cost child custody case 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.