Child Custody The Process of Contested Custody
by: Bonnie R. Benitez, Attorney
Previously employed by CAMFT
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'Ã‚Â· dispute, while
keeping in mind the best interest of the child or children at issue.
THE STATUS QUO
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'Ã‚Â·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.
THE CHILD'S WISHES
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"Ã‚Â· 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"Ã‚Â· 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
CHILD SEXUAL ABUSE ALLEGATIONS
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
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
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"Ã‚Â· 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
INDEPENDENT CUSTODY EVALUATION
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
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
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
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
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
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
MENTAL HEALTH PROFESSIONALS AND
CONTESTED CUSTODY PROCEEDINGS
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
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,"Ã‚Â· 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,"Ã‚Â· published in the January/February
2003 issue of The Therapist and can be found online at www.camft.org.
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
- 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
- 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
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"Ã‚Â· 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
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
14 Family Code 7505.
15 Welfare and Institutions Code 300 et seq.
16 Family Code 8500 et seq.
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