In California child custody is based on the overall best interest of the child. This means the health, welfare and safety of children is the first concern of the courts. “Despite the fact that most states, including California, advocate for the best interests of the child in custody proceedings, what that ‘actually’ means is often decided on a case by case basis. Its interpretation is also often left to the family court judge,” commented Gerald A. Maggio, of The Maggio Law Firm in Irvine, California. The difficult thing with this mantra – what is in the best interests of the child – tends to vary in each state, with some advocating a preference and presumption for joint custody while others don’t agree with that line of thinking. Some states are also amending their laws to have a preference/presumption for joint custody, and others are opting to only have joint custody if the parents both agree to it. “Frankly, this is a matter that is best discussed with an attorney, because each case is different and thus may resolve itself in a different manner. When dealing with child custody cases it’s best not to make assumptions,” Maggio said. In California, the standard for child custody is the much talked about best interests doctrine combined with a leaning toward frequent and continuing contact with both parents. “The one thing to note about California family law when it comes to dealing with child custody is that there is ‘no’ preference or presumption for or against joint custody or even custody to one parent. The parenting plans are generally left to the family law court or a judge,” explained Maggio. For those who may have been following the changes in the law with regard to child custody, California at one time ‘did’ have a presumption for joint custody. This was amended in 1994 to allow for joint custody only when the parents were in agreement. This amendment put California in line with several other states who adopted a similar law: Washington, Vermont, Nevada, Mississippi, Michigan, Maine, and Connecticut. Whatever the case may be in the various other states, one thing seems to be certain: there is a trend toward joint custody being adopted as being in the best interests of the child. This of course is only applicable if certain circumstances apply. For example, evidence of an unfit parent or evidence that the child may be the victim of abuse; therefore, joint custody would not be in their best interests. “Anyone faced with a child custody battle would be well-advised to speak to an experienced family attorney to find out what laws apply in that area. It would also be in the parents’ best interests to find out what the courts in their state feel is the best for the child in custody disputes,” Maggio pointed out. Gerald A. Maggio is senior partner of The Maggio Law Firm, Inc., an Orange County and Riverside Divorce and Family Law firm headquartered in Irvine, California. The Maggio Law Firm is experienced in all aspects of divorce and family law matters, including child custody, child support, spousal support, complicated high asset marital property cases, and domestic partnerships.
Attorney Gerald Maggio