Darlynn Morgan

By Darlynn Morgan

Darlynn Morgan

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Shared Custody: Why It’s Not Always Best

By: Daniel R. Gold, Tredway Lumsdaine & Doyle LLP

“Children are resilient – they’ll bounce back.” If you’re a parent, you’ve likely heard these words and hope the saying is true as your child faces life challenges.

Navigating a child custody case during a divorce is never easy, and for children, divorce can be stressful, sad and confusing. Children in families going through a divorce are typically the only ones who do not have a choice where they fit – or where they’ll end up – throughout the process.

As parents, it’s important to give your child the right support they need through your divorce or separation. Successfully navigating this unsettling time can help your child heal and find hope – feeling loved, confident and strong.

Determining Custody

Several factors are considered when determining a child’s physical and/or legal custody in California. Oftentimes, parents may become attracted to the idea of a “50/50” shared custody arrangement where the child splits time equally between parents. This type of schedule is the byproduct of settlements designed to make one demanding parent happy and thereby sidestep an emotional courtroom battle. While avoiding litigation is always a noteworthy goal, an arrangement that is unstable and unnecessarily challenging for a child already in turmoil is not the best solution. In my experience, I’ve witnessed parents battling over “percentages” measured in hours, rather than determining what schedule is truly best for the child because they look at their interests, rather than the child’s. Studies have found that “50/50” custody agreements can bring on even more conflict – detrimentally affecting a child’s behaviors and academic achievement.

Generally, the court will also weigh in on a parent’s proposed arrangement and whether it’s in the child’s best interest. Questions such as: “Are the parents stable?” “Do they have drug or alcohol issues?” “Is there domestic violence in either household? “Does the child have behavioral issues or other special needs?” are factors considered in a custody dispute.

Living in two places also may bring on added financial and emotional stress, which significantly impacts a child. No matter the age, there is no clear line for when a child can express a preference for either parent. Under California law, it depends on whether the child is of “sufficient age and capacity to reason so as to form an intelligent preference to custody or visitation.” Special considerations are also taken into account for children under the age of three, such as maternal nursing and paternal bonding.

If the custody matter is not resolved in mandatory mediation, the court may conduct a hearing where they consider testimony from the child’s parents, relatives, and, if necessary and appropriate, the child. The court is given some liberty in taking the evidence presented, and may, in some cases, appoint a mental health professional to observe the situation and help provide information necessary to make a decision (i.e. a custody evaluation).

In my experience, custody evaluations, while less stressful and taxing than courtroom litigation, can be just as unpredictable and devastating, since the parent is allowing a third party “expert” to essentially critique his or her parenting skills. In the end, a good evaluation can help the parents get to the bottom of the dispute, and assist the parents and court in crafting an appropriate solution to their family dynamic.

When “50/50” Custody Plans May Work

In many cases, psychologists find that children need stability to avoid the feeling of moving from place to place like “nomads” without a space to call their own. I have in some cases witnessed successful shared custody plans. In my years of practice, I’ve noted two main characteristics of successful shared custody plans: (1) close proximity between parental residences and (2) two high functioning parents who are willing to put aside personal differences to be on the same page as parents for their child. The parents must act as if the child (or children) live in one household, separated by two locations.

Ultimately, a parent in a custody battle should realize what is worth fighting for – the child’s wellbeing. Ask yourself this: “how would you feel if you had to change where you slept every other night?” It’s important to understand that the courts have one goal: to ensure that the post-divorce custody agreement is in the best interest of the child. When confronted with a child’s health, safety and welfare, along with having frequent access between parents, judges are careful to side with the child’s health, safety and welfare. Whenever possible, the best thing for a child is to have both parents continue to be involved in his or her life after a divorce.

About the Author:  Daniel R. Gold, CFLS is the managing partner at Tredway Lumsdaine & Doyle LLP (TLD), a longstanding Southern California law firm. With more than 20 years of experience, Gold practices family law exclusively and has participated in more than one hundred contested hearings and trials. Gold is certified by the State Bar of California Board of Legal Specialization as a family law specialist and is a member of the Los Angeles and Orange County Bar Association Family Law Sections, and the American Bar Association. For more information, call 877-923-0971 or visit www.tldlaw.com.

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