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Child Custody The Process of Contested Custody

by: Bonnie R. Benitez, Attorney
Previously employed by CAMFT

The Therapist
November/December 2005

Therapists often find themselves treating a mother, father, child, or family in the midst of a custody dispute. This article is intended to provide therapists with a fundamental understanding of contested custody proceedings, including the role of the mediator, child custody evaluator, minor's counsel and the court. In a subsequent article, the outcome of the custody/visitation dispute will be examined so therapists have a better understanding of the rights and limitations conferred upon parents who have concluded the contested custody proceedings.

Because contested custody litigation can be inordinately expensive and time consuming, family law attorneys and the courts strongly encourage parents to settle custody and visitation issues out of court. However, should the parents fail to reach an agreement regarding custody, the court has broad authority to put into motion the elements needed to resolve the parties'· dispute, while keeping in mind the best interest of the child or children at issue.

In the absence of a showing of detriment to the child, courts are likely to maintain the child's pre-existing living arrangements. This is particularly true when the child is young. For example, if the children have been living with their father since the separation, the court will tend to make that arrangement permanent unless it is shown to be detrimental to the children's well-being.

Sometimes courts are faced with one parent adamantly seeking to keep the children away from the other parent. However, unless the children'·s health, safety, or welfare would be damaged by continued contact with both parents, the custody order will likely ensure frequent contact with both parents.

With older children, particularly teenagers, the court will also consider the child's wishes. In fact, the court must consider and give due weight to the wishes of a child who is of "sufficient age and capacity"· to reason so as to form an intelligent preference as to custody. 1 However, there is no magic age upon which a child meets this threshold. Whether a child is of "sufficient age and capacity"· will vary with each child. Typically, as a child draws near his/her teenage years, the court will be sympathetic to the child's wishes. However, some courts have taken notice of the wishes of children as young as seven or eight years of age. Courts will not necessarily choose to interview the child in an effort to determine the child's wishes. Nonetheless, the court may rely upon the mediator's report regarding the mediator's interview with the child, or statements made by minor's counsel. Regardless of the child's age or capacity, the court is under no obligation to adhere to the child's wishes, it is only required to consider them and give due weight to the child's wishes.

Under certain circumstances, such as domestic violence or a threat to remove a child from California, an ex parte hearing can be held in an effort to obtain a Temporary Restraining Order (TRO), or Protective Order. Such an order can immediately restrain one or both parties from having contact with the child, or removing the child from the court's jurisdiction. Such an order will typically remain in effect until final judgment on the matter, or until the proceeding has been dismissed.

If sexual abuse allegations are made during the custody proceeding, the court may ask the local child welfare services to investigate the allegations and report back to the court when the investigation is complete. In the meantime, the court can take whatever steps are necessary to ensure the child is safe from harm.4

It is not uncommon for parents involved in a custody dispute to fabricate child abuse allegations. However, if a court determines that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the allegation knew it to be false at the time the accusation was made, the court may impose reasonable monetary sanctions. Such sanctions can be levied upon any party, party's attorney, or any witness; the sanctions imposed cannot exceed the costs incurred by the accused party in his/her defense, including attorney's fees incurred in recovering the sanctions from the person making the false accusation.

In the absence of an out-of-court settlement, mediation is mandated before the parents can proceed to a hearing.5 All contested custody and visitation issues, including visitation applications by stepparents and grandparents, are required to go through the mediation process. Any failure to participate in mediation, on the part of a parent, will bar that parent from being heard by the court in their appeal for custody.

The purpose of mandatory mediation is threefold: (1) to decrease the hostility between the parties; (2) to guarantee continued contact between the child and both parents, so long as such contact is consistent with the child·s best interest; and (3) to create an agreement between the parties that is in the child's best interest.

The factors to be considered in the mediation process include the child's health, safety, and welfare; any history of physical abuse; the nature and amount of contact with both parents; and any habitual or continued illegal use of controlled substances. The mediator is required to use his/her best efforts to effect a settlement of the dispute that is in the child's best interest.6 He/she has the duty to assess the needs and interest of the child involved in the dispute, and to interview the child if he/she deems it appropriate to do so.

Many therapists are also trained mediators, and in such a role, they are not '"treating"· the parties; rather, they are assisting the parties in developing a mutual agreement, and reporting their findings and or the agreement to the court.

If a mediation settlement is reached, the agreement will be submitted to the court for confirmation. The terms of the settlement will then be incorporated into the subsequent court order.

In some jurisdictions, depending upon the local rules, the mediator can make custody/ visitation recommendations to the court, whether or not a settlement was reached.7 If the local rules permit it, the court will receive the mediator's recommendations and take them into consideration. The mediator's recommendation is confidential, and may only be disclosed to those specified in law.8

Once the initial mediation mandate has been satisfied, if the mediation is unsuccessful, the court may elect to decide the custody dispute without further mediation, or it may order the parties to attend additional mediation.

Contested custody/visitation proceedings may also result in an independent child custody evaluation, in which a child custody evaluator prepares a confidential report for the court's consideration.9 Unlike mediation, a child custody evaluation is not required in each case. Child custody evaluators must meet uniform statewide minimum training and standards. These standards were previously published in The Therapist and have been updated and are available on the CAMFT website.

Many therapists are also qualified child custody evaluators. As such, they are not acting as treating therapists, and have the sole task of gathering information regarding the parties and the child, analyzing the information, and reporting their findings and recommendations to the court.

Treating therapists, especially children's therapists, are frequently asked by child custody evaluators to provide information regarding their patients. So long as the therapist has obtained written authorization from the patient, or the parents of a child patient, such releases of information are permitted. In fact, a child or family's therapist will often have valuable insights regarding the relationships between the child and his/her parents. Therapists should, however, use caution when speaking to a custody evaluator. He/she should not offer any particular custody or visitation recommendations, even if asked to do so by the evaluator. Rather, the therapist should focus on the clinical issues that have been presented in treatment, and other relevant information of which the therapist has first-hand knowledge or experience.

The custody evaluation report is to be filed with the court and served on the parties and minor's counsel at least 10 days prior to the custody hearing. Typically, courts give the evaluator·s recommendations great weight when making decisions. Like the mediator's report, child custody evaluation reports are also confidential. The costs associated with custody evaluations may fall upon the parties if the court determines they have the ability to pay.

Child custody evaluators sometimes have the unhappy job of making one or both of the parties in a custody dispute quite angry. Fortunately, these evaluators are given a litigation privilege, which provides absolute immunity for their testimony, publications, or broadcasts made in the course of a judi- cial proceeding. Further, custody evaluators have also been extended quasi-judicial immunity, which has historically been extended to those appointed by the court.

When a court finds that it is in the child's best interest to have independent representation, it may appoint private counsel to represent the minor child. Either party, the mediator, child custody evaluator, the child, or others can also request minor·s counsel.10 If there is more than one child, the children may be entitled to separate counsel, if there is a conflict in the combined representation of the children. The attorney representing the child is entitled to a reasonable fee, which is paid by the parties in proportions that the court deems just. If the parties are unable to pay, the county will also share in the costs associated with minor·s counsel.

The attorney representing the minor is charged with the representation of the child's best interests. He/she will gather information and present such information to the court. Minor's counsel will typically review the court files, and speak with professionals involved in the child's life, such as teachers, doctors, and therapists. He/she will also speak with the child, and if appropriate, make the child's wishes known to the court. The attorney will then prepare a report and file the report with the court, and with the parties, at least 10 days before the hearing on the custody/visitation matter. If the report contains confidential material, such as a psychological evaluation, the court must hold that information confidential. Minor's counsel will also be present at the hearing, may introduce witnesses, and make arguments to the court regarding the child's welfare.

The rights of minor's counsel are broad, and allow him/her to access the child's medical, mental health, and educational records. Any release of information to minor's counsel would not waive the confidentiality of the information provided. He/she can assert or waive any privilege on behalf of the child; seek an independent psychological or physical examination or evaluation of the child; and demand reasonable advance notice of any psychological or physical examination or evaluation of the child, with a right to refuse such an examination or evaluation.11

The court may, on its own motion or on a motion of either party, appoint a mental health expert to examine one or both parents, and/or the children for the purpose of making a report and testifying at trial regarding custody and visitation. The litigation privilege referred to earlier would also extend to the testimony and report submitted by the mental health expert.

In addition, when a party's mental status is at issue in the custody dispute, the court may order the party to submit to a mental health examination. The medical or mental health records of a parent typically cannot be successfully obtained by the opposing party unless the party whose records are being sought has put his/her mental condition at issue in the proceeding, thus waiving the physicianpatient or psychotherapist-patient privilege.

Further, upon making special findings, the court may also order a child and parents, or any other party involved, to participate in outpatient mental health counseling. However, before issuing an order for counseling, the court must find that the custody/visitation dispute poses a substantial danger to the child's best interest; and that counseling is in the child's best interest.12

In making such a determination, the court must set forth the reasons why it believes the dispute itself poses a substantial danger to the child's best interest, and why it believes that the costs associated with the counseling do not otherwise jeopardize the party's other financial obligations. The counseling must be designed to assist in the communication between the parties regarding the best interest of the child, to reduce conflicts over custody and visitation, and to improve the quality of the parenting skills of each parent. The counseling may be ordered for up to one year.

Therapists who provide court-ordered counseling to parties involved in custody disputes should be careful not to assume the role of a mediator or a child custody evaluator. The purpose of the counseling should be outlined in the court's order, but generally it will involve treatment to help the parties and the child manage the custody/visitation arrangement more cooperatively. Such counseling should not involve the therapist subsequently making recommendations regarding future custody/visitation arrangements. In fact, whenever a therapist is in the role of a "treating therapist,"· he/she should remain objective, and generally uninvolved in any legal dispute of the patient or parents of the patient. These issues were previously addressed in "The Dual Forensic Role: Guidelines in Avoiding Conflicting Roles with Patients,"· published in the January/February 2003 issue of The Therapist and can be found online at

As an aside, both the CAMFT Ethics Committee and the BBS have received numerous complaints stemming from letters or statements made by therapists in custody disputes. A treating therapist who makes a custody or visitation recommendation can expect a complaint from one, or sometimes both, of the parents. Another frequent mistake therapists make in such situations is to comment on the mental status or emotional well-being of a parent the therapist has not independently evaluated [e.g. commenting on a mother's borderline tendencies (when the mother is not a patient); or recommending that a father be required to seek treatment for his anger (when the father is not a patient].

To the extent a therapist is forced (via subpoena or court order) to provide testimony, the therapist has a duty to remain objective and truthful. The CAMFT Ethical Standards for Marriage and Family Therapists include the following responsibilities to the legal system:

  • MFTs who give testimony in proceedings testify truthfully and avoid making misleading statements.
  • MFTs who act as expert witnesses base their opinions and conclusions on appropriate data, and are careful to acknowledge the limits of their data or conclusions in order to avoid providing misleading testimony or reports.
  • MFTs avoid, wherever possible, performing conflicting roles in legal proceedings and disclose any potential conflicts to prospective clients, to the courts, or to others as appropriate.
  • MFTs, regardless of their role in a legal proceeding, remain objective and do not compromise their professional judgment or integrity.
  • MFTs do not express professional opinions about an individual's mental or emotional condition unless they have conducted an examination of the individual, or unless they reveal the limits of the information upon which their professional opinions are based, with appropriate cautions as to the effects of such limited information upon their opinions.

Other Custody/Visitation Disputes
Guardianship proceedings are typically brought to authorize a nonparent's custody and control of a child when both of the parents are deceased, missing, or when their custody is detrimental to the child. Guardianship matters fall under the jurisdiction of the probate court of the county in which the minor resides.13 However, if the child is a ward or dependent of the juvenile court, guardianship proceedings will take place in that court.

Once appointed, a guardian typically has broad authority to make decisions for the child, including health decisions. At the same time, the rights of the parents come to an end.14 The court order granting guardianship may, however, have limitations placed upon the guardian. Therefore, therapists are well advised to request a copy of the guardianship order prior to commencing treatment.

The juvenile court has the authority to declare a child a "dependent"· of the court, in so doing, the child is removed from parental custody and control.15 Such action is typically taken when the parents have been neglectful of their custodial responsibilities. Likewise, the juvenile court may return the child to the parents under the supervision of the local child welfare agency. Alternatively, the court may place the child with relatives, in out-of-home care, or in a foster home. Frequently, the court will order family reunification services for the parents, and conduct periodic review hearings to determine whether continued placement is warranted. If the child cannot be safely returned to his/her parents, the court will then select the appropriate permanent placement plan for the child, which may include termination of parental rights so the child can be made available for adoption.

Adoption proceedings are typically handled through the superior court, and from the time the adoption is granted, the adoptive parents have the same rights and responsibilities as biological parents would have had. Likewise, all rights and responsibilities of the biological parents are concluded.16

The information presented in this article is a summary of the very complex custody/visitation arena, and is intended to enhance your understanding of the process and the role a therapist should, or should not, play therein. Whenever your patient, or patient's parents are involved in a contested custody matter, take the time to make clear what the parents can expect of you with regard to their pursuit of child custody. Most importantly, be mindful of the role you play as a treating therapist, as well as the responsibilities of the various other players in the custody dispute process.

This article appeared in the November/December 2005 issue of The Therapist, the publication of the California Association of Marriage and Family Therapists, headquartered in San Diego, California. The information contained in this article is intended to provide guidelines for addressing legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.

1 Family Code 3042
2 An ex parte proceeding is one brought for the benefit of one party only, and is brought without notice or challenge by the adverse party.
3 Family Code 7700 et seq., and 3064.
4 Family Code 3027
5 Family Code 3160 et seq.
6 Family Code 3180
7 Family Code 3183
8 Family Code 3025.5
9 Family Code 3111
10 Family Code 3150 et seq.
11 Family Code 3151.
12 Family Code 3190.
13 Although the superior court may acting on powers granted to it by the probate court.
14 Family Code 7505.
15 Welfare and Institutions Code 300 et seq.
16 Family Code 8500 et seq. 

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