A battle for custody is very often where spouses or ex-spouses bring out the heavy artillery. These cases can be drawn out, high conflict cases, often for good reason, but sometimes for vengeance or no reason at all.
Amy Laughlin, Founder and Partner at Laughlin Legal Divorce & Family Law Group, a California high net worth and ultra high net worth divorce and custody law firm, has seen a great deal. When given the opportunity to counsel parents by answering their child custody questions in advance of taking legal action, she’s happy to do so. But before even the first question is asked, she has a small bit of advice: “Let me just say upfront that whether or not you’re actually thinking of filing custody without informing the father, please remember that you do not have to demonize your spouse to divorce them. It will not create a better outcome for you or your children, in fact, barring child abuse, substance abuse or some significant issue affecting parenting, it will definitely create a worse outcome for your child.”
Child custody question #1: Can I get custody without the father’s knowledge in California?
A: “No, you cannot file for sole custody without notice to the father – unless there is a need for temporary emergency orders. Or the mother, as the case may be. It often surprises fathers, but California doesn’t have a preference here between mom and dad. There’s only one standard in California regarding custody and that is whatever is in the best interest of the child or children. And generally speaking, it’s in a child’s best interest to have frequent and continuing contact with both parents unless there’s a significant reason not to. For instance, if domestic violence is committed against a parent, even though the child has not been the subject of that violence, there’s a presumption against shared legal and physical custody.
Child custody question #2: What kind of situation justifies sole custody?
A: “Anything that puts your child’s health and wellbeing at risk in some way. As I mentioned, domestic violence in the household either between parents or between a parent and a child, or a parent’s substance abuse, or the special needs of a child which are not being addressed by one parent. Under one of those circumstances, you can file an emergency request for custody orders. The court will issue temporary orders but eventually the other party has the right to be heard. They will have to be served with those temporary orders and then a hearing date will be set soon thereafter so that the other person can be heard. They’ll get their day in court. And there’s a very good reason for it. Allowing the filing of a full custody petition without notifying the father is to allow the inappropriate bringing of legal action against a parent. This would be a violation of an individual’s due process rights.
Note that though you do not have to notify the other parent before filing papers for custody, you do have to notify them statutorily a certain number of days before the hearing. This may sound counterintuitive when you’re bracing yourself for a fight, but the best way to handle this is to work cooperatively with the other parent, whenever possible. Take it from an experienced custody attorney – it’s more expeditious, and that makes it better for the children unless, of course, there’s some kind of crisis like domestic violence or violence to the children.”
Child custody question #3: Can you please share any secret full custody request guidelines?
A: “When we hear questions like this one, it often indicates a parent who’s afraid to notify the other parent before the order is issued and the parent is served because there’s domestic violence at home. When that’s the case, when there’s either domestic violence or the health and welfare of a child is at risk, again, they can get a temporary order of the court without notifying the other parent. Once the order has been issued, however, they will have to notify the other parent. But they can get the order prior to notifying in an emergency, and it can be issued pursuant to a temporary restraining order or an emergency custody order.
Having said that, when neither domestic violence nor a threat to the child’s health and welfare is present, I would ask the parent who asked that question to turn the tables on their question. Let’s assume you were innocent of any behavior that might endanger the health and wellbeing of your child or children. But your spouse is convinced that’s not true. Would you be ok with California permitting your spouse to secretly petition the court to permit your spouse to get a hearing requesting custody without serving the other parent? In other words, without you knowing about it or being present at the hearing? Of course not.”
Child custody question #4: Is secret custody filing legal in California?
A: “Again, absolutely not. In a normal, non-urgent situation, you would file your custody paperwork, the court would get a hearing on the books, and that paperwork would have to be served on the other parent. In the interim, the status quo remains in place. So no, the hearing cannot occur without them knowing. That’s the whole purpose of serving the paperwork – it’s called due process. It protects some of your most fundamental rights including your day in court. And that’s true regardless of whether you want sole custody or joint custody, you must provide notice to the other parent in the form of serving the paperwork for the hearing.”
If you feel that filing a full custody petition without notifying the father is the only way to do what’s best for your children, let’s talk.
Laughlin Legal Divorce & Family Law Group is a collection of some of the most skilled high net worth and ultra high net worth divorce and child custody attorneys and mediators in California. They’re also highly experienced with complex asset division. Laughlin Legal is trusted throughout California for their ability to skillfully help divorcing parties achieve a better outcome.
If you or someone you love is headed for a divorce or custody battle, learn more about how the services we offer can best represent you and your values. Call us now at 650.343.3486 to schedule a consultation with a Laughlin Legal divorce attorney. If you’d prefer, you can email us to set up your appointment. If we miss your call, we will respond promptly and call you back as soon as possible.
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