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CONSIDERATIONS FOR CHILD CUSTODY

Custody is one of the issues in family law that requires the applicant who is addressing the court for the first time to have an expert attorney. The first application is going to decide, or be a significant factor in, what the ultimate custody order will be because California law requires the court to consider what the status quo has been with respect to the child.

If you currently have a favorable status quo and you have had that favorable status quo without having filed anything, you may want to delay the filing of a custody application so you can increase the amount time of the favorable status quo. For example, if you have separated amicably with your spouse and you have been the primary parent because the other spouse is working or is not interested in taking the children, you may want to delay filing. Making the decision of when to first file is a critical consideration for custody that should be explored with a very competent and experienced attorney.

In Santa Clara County, which is different than San Mateo County, mediation is mandatory but it is confidential. This means that anything said in mediation in Santa Clara County can never be used or even mentioned in the court hearing. You can say whatever you need to say and know that it is not going to be used against you in the litigation. I prepare my clients for what they should be talking about and what objectives they want to meet, but what is said during mediation is not critical because nothing other than a written agreement can be used from this process.

Santa Clara County does allow you to have an emergency screening prior to the court hearing, if there is an emergency and the court needs a recommendation because they are going to make orders. Possible emergencies include, domestic violence or a threat that a child is at risk. In a screening, the lawyers get to be the advocates. The lawyers present the evidence to the court-appointed therapist. The lawyers make the case as opposed to the client who has no idea what legitimate, relevant, or admissible evidence to present. As a litigator, you do not want a scared, emotional client presenting the case.

In contrast to Santa Clara County, San Mateo County is non-confidential reporting county. After the couple meets with a mediator in San Mateo County, the mediator prepares a written recommendation to the judge. The judge receives the written recommendation before the custody hearing. If you have a client who is not articulate or is not able to support their position and the other spouse is very articulate, it is a critical difference.

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