Special Circumstances in California Child Custody

No two child custody cases are the same. Find information below on circumstances that may arise during your case.

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Child counsel

Sometimes in custody cases, the best interests of the child and the parents conflict. If a judge believes the child's needs aren't being heard, they can appoint an attorney to represent the child, known as a minor's counsel or child counsel. This most often occurs in cases involving neglect, abuse, addiction or similar issues. Each child in a case may have a separate attorney.

The role of the minor's counsel is to look out for their young client at every turn. One way they do this is by gathering evidence of the best custody arrangement for the child.

Beyond speaking with the child, counsel may also review documents (like medical or school records), order psychological or physical tests of the child, or interview people with knowledge of the family. If the child is mature enough to have an informed opinion, the counsel will share that opinion with the court or help the child testify.

The appointment of a child counsel can based on the recommendation of a mediator or evaluator, requested by one or both parents, or initiated by a judge at any point in custody litigation.

The court decides who pays for the minor's counsel. Often parents split the costs, but one parent can be ordered to pay, or the county may cover the full cost if necessary.

History of crime, violence or substance abuse

A criminal record or a history of domestic violence or substance abuse can significantly lower the likelihood a parent will receive custody of a child in California. Judges take convictions or corroborated allegations into account when deciding custody arrangements.

Judges are particularly unlikely to award custody to someone who is in any of the following circumstances:

  • Committed domestic violence in the past five years
  • Is restrained by a protective order
  • Is under investigation by law enforcement
  • Got out of prison recently
  • Has a history of violating probation

Although judges usually approve parenting plans that parents agree on, they are more likely to intervene when these sorts of complicating factors are involved.

Still, outcomes for parents with a history of crime, violence or substance abuse can vary. All of the below are possible:

  • Many times the parent is awarded visitation ― often supervised visitation (explained below) ― because California aims to give children contact with both parents whenever it's healthy.
  • If the parent can prove their behavior is in the past, he or she may still be able to get custody. (When a judge does decide to award custody to a parent despite allegations of domestic violence or substance abuse, they must explain why.)
  • Courts may also mandate therapy, classes or drug testing for the parent.

When allegations of problematic behaviors are made during proceedings, judges usually order an evaluation. The custody and visitation case may have to wait for the findings before advancing.

Special arrangements can be made for parents who have had violent relationships. These parents are able to meet separately with mediators, and their parenting plan can ensure they don't need to see each other.

If you have criminal activity or other issues in your past, you'll need an attorney to help prove your fitness as a parent. They may advise you to try to have your convictions expunged from your record. They'll definitely recommend you demonstrate progress and commitment, perhaps by completing rehabilitation programs, going to therapy, releasing medical records, or gathering affidavits from people who know you.

False accusations in a custody and visitation case are taken seriously. Anyone ― a parent, witness, attorney, etc. ― found to have knowingly made false claims of child abuse or neglect to a court can be ordered to pay the accused person's legal costs. Beyond that, lying under oath is a felony that can come with jail time or fines. Parents discovered making false claims hurt their requests for custody and can be brought back to court to have final custody orders changed.

Supervised visitation

In custody cases where a child's safety or comfort with a parent is in question, courts may order supervised visitation. This means the child can only spend time with the parent when another person is present. The court specifies the time and length of the visits, and it sometimes mandates who supervises the visits and where they take place.

Situations that may call for supervised visitation include:

  • When there's a history or allegation of domestic violence, child abuse, neglect or substance abuse
  • When there's concern the parent may kidnap the child
  • When the parent has a mental illness
  • When the parent and child do not have an existing relationship
  • When the parent and a child have had a long separation

Visits can be supervised by either a professional or nonprofessional. Check your court order to see if it specifies which you must use. When there are concerns about domestic violence, child abuse, sexual abuse or neglect, a professional is strongly advised.

Professional visitation supervisors are trained and charge for their services. Your superior court should have a list of local professional providers. You can interview them about their experience, availability and fees before selecting one.

Nonprofessional providers are usually family or friends of the parents asked to volunteer their time. They must be impartial, at least 21, pass a background check and speak the same language as the parent and child who are visiting.

Both types of providers have the same responsibilities. They must be present for the child's entire visit with the parent, pay close attention to the conversation and body language of both people, and interrupt or end the visit if they have concerns. They are always required to report suspected child abuse.

Parental alienation

Parental alienation occurs when one parent attempts to distort their child's relationship with the other parent through false claims and manipulation.

An official custody evaluation ― complete with interviews, observation and psychological tests ― is usually necessary to confirm parental alienation. If identified, the evaluator will often recommend therapy for the family members involved, as well as gradually-increasing parenting time or even sole custody for the alienated parent.

Talk to an attorney if you need to prove or disprove parental alienation, as it is a serious, complex and controversial allegation.

Foreign languages

California requires all official court business be done in English. Foreign language speakers can request a free interpreter or hire their own interpreter.

If you hire your own, make sure they are recognized by the Judicial Council of California either as a certified court interpreter or as a registered court interpreter for languages that do not have a state certification test.

If you work with a family law facilitator's office, it may have bilingual staff available. But it's best to have your own interpreter if you'll need substantial help.

Undocumented immigrants

Under state law, immigration status cannot be a consideration in a custody ruling.

If a parent is deported or detained for violation of immigration laws, he or she has the right to take part in the custody process remotely. The parent can use phone or video to participate in court-ordered mediation, testify and more.

Addressing special situations in your parenting plan

Your parenting plan should be unique to your family and reflect your specific needs.

If a lawyer or mediator is writing your plan, it's important you share with them any circumstances the plan should address.

If you're writing your own plan, you have the flexibility to include what you want. But — the plan needs to follow a format the judge will understand, as well as use airtight language that leaves no room for interpretation.

The Custody X Change parenting plan template walks you through common provisions, while letting you enter as many custom provisions as you want. It's a sure way to get a plan that's tailored to your family AND meets court standards for formatting and language.

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