divorce mediation
divorce mediation
divorce mediation


Divorce by itself is heart wrenching, and the addition of children to the equation makes it even more challenging. If a couple doesn't have children, and they insist on dragging their divorce into court and litigating away much of their savings, at least the victims of the damage they inflict are adults. Sadly, when minor children are involved, the emotional harm resulting from a high conflict divorce may last for many years. Indeed, many now-middle-aged children who endured a high conflict divorce when they were young still consider it the most painful and scarring experience of their lives.

Sound intimidating? Take heart in the fact that millions of divorced parents have navigated their way through the process while making their children's emotional welfare their top priority. This is well-traveled territory, and with some careful planning, good intentions, and a strong heart, you can not only survive the process, but you can also ensure that your children are raised in a stable, loving environment.

Here are a few basic things you need to know about child custody:

  • If a couple can't reach agreement on custody, a mental health professional known as a custody evaluator, not a judge, often truly decides how custody will be shared.
  • Before a judge makes anything more than a temporary award of custody or visitation, California law requires spouses to mediate their differences.
  • Many judges would consider a child's degree of attachment to each parent the most important factor in evaluating custodial arrangements.
  • The law governing whether a custodial parent may relocate children out of state has changed repeatedly, and it is now very difficult for a noncustodial parent to prevent relocation.


The term physical custody refers to the parent (or both parents, if custody is shared) who has physical responsibility for the care of the children. The term legal custody refers to the parent (or both parents, if custody is shared) who will possess decision-making authority relating to the health, education, and welfare of a child.

The term joint physical custody is often misused in California. It does not mean equal timesharing, as many seem to believe. Indeed, a parent who only sees his or her children every other weekend and a few weeks during the summer may be awarded joint physical custody. This avoids the use of the demeaning term "visitation. No parent wants to feel like a visitor when spending time with the children.

The term sole physical custody simply means that one parent has the exclusive right to have the children live with him or her. Although the term primary physical custody is not defined anywhere in the Family Code, family courts continue to use the term. This can have a significant impact when one spouse wants to relocate the children. If that spouse has sole physical custody or even primary physical custody, he or she may be permitted to leave with the kids without the permission of the other spouse.

Joint legal custody means that both parents have the authority to make decisions regarding the health, education, and welfare of the children. This involves such things as determining whether or not they should attend church, where they should attend school, and when they should be able to obtain a driver's license. Sole legal custody means that one parent has the authority to make all of these decisions.

Core Custodial Issues

1. Where will the children live?

Deciding where your children will live after your divorce is perhaps the most critical decision you will make during the divorce mediation process. This decision not only involves the basic question of whether they will live in one residence or split their time between two homes, but naturally also involves how much time they will spend with each parent. There are several possible approaches to housing your children, and they include (a) having the children live in one home, (b) have them split their time between two homes, and (c) having them live in someone else's home (a grandparent, for instance).

2. Healthcare

Once you've determined where your children will live, you should consider how the location will impact their access to healthcare. For parents who live in the same town, the simplest solution is often to keep the same healthcare provider that the children used before the divorce. However, if one parent lives far enough away that visiting the children's physician becomes a hassle, alternate healthcare arrangements need to be made.

With portable insurance, such as Anthem Blue Cross, simply finding the child a new primary care physician in the move-away parent's new hometown is an easy option. However, when one spouse receives employer-subsidized medical care through an HMO tied to a geographic area (such as Kaiser Permanente), arranging coverage for the children can be trickier. Some HMOs allow members to arrange for medical services for their children with other providers while they are outside of a specified geographic area, but this isn't always the case. On occasion, buying a portable policy for the children that can be used where both parents live is the best option available.

In addition to thinking about how medical coverage will be handled, you need to decide exactly who will have the authority to handle certain medical matters, such as immunizations. Routine care typically doesn't require the consent of the other parent, but immunizations require coordination to avoid duplication. Most parents opt to require the consent of the other spouse before non-emergency surgery or hospitalization. Likewise, in all cases parents need to coordinate carefully when it comes to agreeing to and administering the children's medications.

3. Education

Although most parents agree that they want their children to enjoy a "good" education, many parents have strikingly divergent views about what exactly "good" means. To some, if means attending the same type of parochial school they attended as children. To others, it means doing whatever is necessary to get their children into a particular magnet school. For others still, it means home schooling their children. As with every aspect of a divorce, clear communication regarding desires and concerns is the key to coming to a workable compromise.

4. Holidays and Summer Vacation

For divorced parents, no time of the year is more difficult to manage as the holidays. Of course both parents want the children at their home during the holidays. Conversely, neither parent wants to spend the holidays alone. To ensure that the children have the opportunity to spend with both parents, a number of difficult possibilities present themselves, all of which can be discussed during your mediation session.

5. Decision Making

Many divorced parents struggle with the process of making decisions that affect their children. Who gets to decide important issues? Both parents jointly? The custodial parent? Another adult? In an ideal world, all parents would be able to reach agreement after carefully considering all of the options, weighing each other's opinions fairly, and analyzing the needs of the children. While this is achievable, creating a little structure around the process of making decisions is often sensible. As with other aspects of your divorce, this can be discussed during mediation.

6. Dispute Resolution

Expect to reach an impasse with your children's other parent at least a few times over the years. It's inevitable. It may something as seemingly innocuous as whether your children can attend the school trip to Washington D.C., or it may be as serious as whether or not a certain surgical procedure is appropriate. Regardless of the severity of the issue that is the subject of disagreement, you should agree on the approach you will take when the two of you just can't settle on a decision.

The Legal Framework for Custody

If the negotiation process breaks down and you and your spouse simply can't agree on who should care for your children, you will undoubtedly wind up in court. As you probably know by now, judges are exceedingly busy. While resolving custody disputes is a very important part of their job, judges simply don't have the time or the insight into the details of your children's lives to make a "perfect" decision, if such a thing exists. You can take heart in the fact that judges really do their best to look out for the interests of your children, but you can also be sure you will achieve a better result by using a mediator to resolve custodial conflicts.

How Does a Judge Decide on Custody?

Because awarding custody is arguably the most important decision that a family court makes in a divorce, and because most judges will freely admit that they haven't obtained the training or education required to effectively determine who should bear primary responsibility for raising a child, a court will invariably rely heavily on the recommendations of various experts. These experts play a critical role in the state-mandated mediation that must occur before a judge makes a decision regarding custody. The experts, and the judges who turn the experts' opinions into binding orders, rely on several factors when make custody decisions, but first and foremost among them is the degree to which a child is bonded with each parent.

Is a Child's Choice of Parent Influential?

Forcing a teenager to live with a particular parent against his or her will is problematic, and can clearly cause a great deal of conflict. Judges are aware of this, and in California they are required to give the child's choice "due weight." Exactly what this means is subject to the interpretation of each judge. Typically, the child's preference will be considered as appropriate considering the child's intelligence, maturity, and motivation for the choice.

Custody Evaluators - Who Are They?

Nearly every court in California utilizes a system which appoints a mental health professional to conduct interviews and make custody recommendations to the court. The recommendation made by this expert is nearly always honored by the presiding judge. Therefore, it is the expert and not the judge who plays the most critical role in custody evaluations.

Custody evaluators come from a variety of backgrounds, ranging from licensed social workers to doctors of psychology. Depending on the county, an evaluator can be either a court employee or a professional in private practice who agrees to accept court referrals. The qualifications and skill set offered by each evaluator varies greatly, particularly among evaluators who accept court referrals. Some are good, and some are bad. As with every other aspect of your divorce, you are much better off negotiating a workable custody arrangement directly. with your spouse.

Attorneys for Children

Rarely, and only in certain counties, a judge will appoint a separate attorney to represent the interests of a child in a hotly contested divorce. The reasons vary, but typically the judge will do so if the attorney for one spouse insists on calling the child to the stand as a witness. The cost of hiring the attorney falls on the spouse who made the appointment necessary. If nothing else, the threat of paying an additional $10,000 in fees to the child's attorneys will often convince a spouse to back down from the controversial position.

Moving Children Away

Perhaps nothing causes more angst to a noncustodial parent that the other parent's decision to move the children to a new geographic area, whether it is across the state or across the country. The law governing the custodial parent's ability to do this has changed repeatedly. Prior to 1991, in most instances the custodial parent was permitted to move the children wherever he or she wanted. To keep the children where they were, the noncustodial spouse had to show that the move would be detrimental to the child, something which is a very difficult thing prove.

In 1991 things changed with the California Appellate Court's decision in In Re Marriage of Carlson. In Carlson , the court stated that children can be moved only if doing so is in their best interests. This decision shifted the burden of proof entirely to the custodial parent. It is very difficult to demonstrate that moving away from the noncustodial parent somehow benefits the child. Under the reasoning of the court, the move away has to be necessary, not simply convenient.

In 1996 things changed yet again with the California Supreme Court's decision in In Re Marriage of Burgess . In Burgess , the court stated that a custodial parent doesn't need to prove that moving the children is necessary. The burden of proof once again shifted to the noncustodial parent, who must show that the move was so harmful to the children that an immediate change of custody was required to protect their welfare. The custodial parent who wishes to relocate only has to show that the move was made in good faith (i.e., it wasn't intended solely to deprive the other parent custody).

Burgess is currently the controlling law on the ability of custodial parents to move their children away. The core principle that can be derived Burgess is the that custodial parent's bond with the child is all-important. Right or wrong, Burgess is the reality that judge's face when presiding over divorces and custody disputes.