"Hi, I'm Marshall Waller, a California certified family law specialist, a fellow of the American Academy of Matrimonial Lawyers, and a fellow of the International Academy of Family Lawyers. I am also the managing partner of the California Family Law Firm, Feinberg and Waller.
I am often asked, how am I going to get custody? How's the judge going to determine custody? And basically there are two concepts to custody of children. One is called legal custody and this has to do with who makes the big decisions about the child. Driver's license, passports, tattoos, where they go to school, things like that. Physical custody is exactly what it sounds like. This is where the children are going to live, what the time share between the parents is going to be.
Generally speaking, unless there's something unusual, most families will have joint legal custody. The law wants both parents involved in their children's lives. They want both parents making as many of the decisions as they can, having input, working cooperatively. And so, you might have not 50/50 time share, but you could still have joint legal custody.
A lot of clients will say to me, "I hope the judge picks me." Well, the judges don't pick a parent. What the judges do is they focus on the child, the best interests of the child. When a judge looks at custody, they're focused on the child's health, safety, and welfare, the nature and the quality of each parent's relationship with their child, the stability that each parent offers, how they're doing in school, are they involved in activities, are they socializing, and where appropriate, the courts will even consider the children's own wishes. The court also cares a great deal about each parent's willingness to allow the other parent to have a meaningful relationship with the child.
There is a law in California that basically says the courts are going to prefer giving custody, physical custody, to the parent most likely to allow the other parent to maintain a decent relationship with their children.
In many California counties, parents are required to attend mediation sessions. They actually call them counseling sessions that are provided by the court. And in those counties, you will meet with the counselor. The counselor will try to help you develop a plan for parenting, co-parenting. And in a perfect world, you guys will agree and they'll write it up and that will become the order of the court. Not every court does this, but the ones that do are very effective at it.
And when you're contemplating a parenting plan, I have clients come to me and they say, "I want 50/50 custody. I demand 50/50 custody. I'll take nothing less than 50/50 custody." And so what I tell them is let's work out what you think is the best physical time share arrangement based upon their school schedules, their extracurricular activities, your school schedules, your work schedules and all that. Come up with that plan and then we'll see what the percentages are. Don't focus on the percentages. Focus on what's best for your child.
One of the most helpful things you can do is bring a clear calendar based proposal to your attorney that says, "Here's how I think the time share between the parents is best for the child." And that should say what the school week looks like, what the vacations look like, what the holiday breaks look like, all of that. That kind of a concrete plan is far more useful than general statements like, "I want 50/50 custody."
If custody is a serious issue in your case, especially if this is a high conflict case or a complex situation, maybe somebody wants to move to another state or to another country. Well, this is an area where experienced legal counsel is critical."
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