PRACTICE / FAMILY LAW - DIVORCE / CUSTODY & VISITATION
Family Law Custody and Visitation Legal Issues
The court has a tremendous amount of discretion to choose a parenting plan that is in the best interests of the child. To guide the courts in exercising discretion, the Legislature has set forth certain specific issues that the court must consider which include:
- The child's health, safety, and welfare,
- Any history of domestic violence or substance abuse
- The nature and amount of contact with both parents
If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court must also consider and give due weight to his or her wishes in making a custody order. This preference is just evidence, however, there is no automatic chronological age below which a child is not of sufficient age and capacity to reason.
The court in its discretion may consider the preference of children as young as seven or eight years. The likelihood that the child's preference will be honored, however, increases with the child's age. It has been observed that there are practical difficulties involved in placing court-coerced restraints on adolescents that require them to live with one parent when they prefer to live with the other parent.
Parental agreements regarding child custody, while not void or illegal, are not binding on the court. The best interests of the child control custody determinations, regardless of the parents' agreement. Nevertheless, in the overwhelming majority of cases, parental agreements will be approved by the court. In nearly every case, it is preferable that the parents come to some resolution of custody themselves rather than litigate the issue for determination by the court.
The guiding principle followed by the courts in making child custody determinations is the best interest of the child. Courts must determine the child's best interests solely from the child's standpoint, and should not consider the feelings and desires of the parents, except insofar as they affect the child's best interests. Some issues that the court considers are:
- Bonding, Stability, and Continuity
- Care and Health of Child
- Education of Child
- Relative Wealth of Parents
- Past Conduct of Parent
Sexual conduct of a parent that offends the other parent, or even the public at large, does not in itself render a parent unfit to have custody of his or her children. In determining the custody of children, the courts are not engaged in a disciplinary action to punish parents for their shortcomings as individuals or to reward the unoffending parent for any wrong suffered by the acts of the other.
In order for a parent's sexual conduct to justify depriving him or her of custody, the conduct must be shown to affect directly the welfare and best interest of the child. There are a number of older cases in which custody has been denied to parents, almost always mothers, because of their involvement in adulterous relationships or other behavior deemed licentious or immoral by the standards of the time.
All of these cases were decided before the Legislature legalized all sex acts between consenting adults and repealed the law against adultery. In one case decided after this legislation was enacted, an order providing that the mother should have no overnight visitation with a member of the opposite sex in the presence of the children until or unless she was married to him was held to be an abuse of discretion because it was intrusive on the privacy and association interests of the mother and lacked evidentiary support in terms of the interests of the children.
The fact that one parent is lesbian or gay is not as a matter of law sufficient reason to deny custody to that parent. One court has stated that, in exercising a choice between a heterosexual and a lesbian or gay household, a trial court could conclude that permanent residence in a lesbian or gay household would be detrimental to the children and contrary to their best interests.
It is impermissible for the court to rely solely on a parent's physical handicap as evidence of the person's unfitness as a parent or of probable detriment to the child. The mental condition of a parent is obviously a factor that may be considered in a custody determination. A parent's religion or the religion in which the child is being raised is not per se a basis for denying custody to that parent but it may be a factor in a custody determination if some aspect of a parent's religious observance is detrimental to the child.
In making a determination of the best interest of the child, the court must consider any history of abuse by one parent or any other person seeking custody against any of the following:
(1) any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary;
(2) the other parent; or
(3) a parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
The court may not grant custody to a person who has been convicted of abusing or endangering child's health, molesting a child or a person who is required to be registered as a sex offender unless the court finds that there is no significant risk to the child, and states its reasons in writing or on the record.
As with all other aspects of family law courts, matters of custody and visitation are not designed to be adversarial. Yet, advocacy skills are important in obtaining a result that suits the interests of the children as well as the parent.
Charles M. Farano is the superior choice for any family law case involving a family business for several reasons.
1. Part of his experience includes 32 years of trial experience in both trial criminal and civil trial arenas where he has deposed literally hundreds of accountants, business evaluators, real estate appraisers and lawyers.
2. His trial experience is probably unsurpassed in the field of family law property settlement. While he recognizes the court’s view that family cases are supposed to be “Non-adversarial”, he also recognizes that a trial is a trial and is willing to take your case to trial without hesitation.