• The Best Interests Test under Family Code §§ 3011 and 3020 •
In a contest between two parents, the primary issue is whether it is in the child's best interest to be placed with mom or with dad and what contact the child should have with the non-primary custodial parent. If the contest is between a non-parent and a parent, the non-parent must first prove that it would be detrimental to the child to be placed with a parent. Usually, the court first will seriously consider the existing child care pattern that the parents already have established for their children. In many instances the court will assume that the pattern of conduct and sharing practiced by the parents prior to the divorce's filing is an appropriate starting point. Although the pattern previously established may not be perfect, and may need some fine tuning, most courts feel safe in adopting that plan or a very similar plan because it is a parenting plan which the parents have previously established.
In making any determination regarding custody and visitation the court must consider Family Code § 3020 which makes it California's public policy that family law judges consider the child's best interests. Family Code § 3020 reads in pertinent part:
". . . [T]he health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children . . ."
Furthermore,
". . . it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child. . ."
With the state legislature being very clear that the courts must do what is in the children's best interests; when it comes to the issue of physical custody, however, there are no rules "set in stone." It often is very difficult for a judge to determine what is in the child's best interest. There are very few situations that will "guarantee" one or the other parent will be awarded custody of children.
California Family Code § 3011 sets forth the following factors a court must consider in making a determination of what is in the cild's best interest:
"(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking custody against any of the following:
(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationships.
(c) The nature and amount of contact with both parents . . .
(d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent . . "
The court becomes more proactive when the parents have extreme conflict and are unable to act consistently with the children's best interests. Minor changes in the sharing plan should be easily accommodated by parents. If a valid reason for a disagreement exists, it should be resolved by mediation or court adjudication. Conflict handled at an early stage is generally handled with less friction and animosity than allowing issues to go unresolved and fester. These festering issues often become overwhelming and cause the anger or frustration of each party to increase due to the usual lack of communication. Therefore, it often is better to seek the advise of a family law attorney early on in a dispute to attempt to resolve the issue in an amicable manner. Once the disagreement becomes overwhelming then court adjudication often centers around the parents needs or motivations and not what’s in the children's best interest.
• Psychological Evaluation Pursuant to Family Code § 3111 •
Where parental conflict exists, judges or parents sometimes engage the assistance of psychologists to help create a parenting plan that serves the child's best interests. If appointed by the Court, the psychological evaluator meets with each parent, their significant others, and usually the child or children to conduct a battery of psychological tests as well as take clinical observations. Once the observations are completed, the psychologist then must make some sort of recommendation to the court. The court then determines the appropriate parenting plan taking into consideration the psychological evaluator's recommendations. One problem with these evaluations is that they tend to be costly (the parents pay) and judges sometimes ignore the recommendations which can make the exercise valueless.
• Mandatory Mediation Through Family Court Services •
The various Superior Court Family Law Departments provide a mediation service which assists all parents who have disputes regarding custody and visitation. This service is mandatory in most jurisdictions when any parenting dispute exists and usually is at no cost to the participants. Attorneys are not allowed to attend the custody and visitation mediation when conducted through family court services. However, the attorney does assist the parent prepare for the mediation appointment and focus on the child's best interest. Some attorneys refer the parent to an appropriate psychological practitioner to prepare the party for the court ordered and sponsored mediation. An experienced attorney can be of great assistance in preparing for the mediation conference. Yet, the attorney's true contribution will be in formalizing any agreements reached and/or litigating any dispute unresolved through the mediation process.
Litigation is necessary when one or both parents totally fails to engage in good faith communication focused on their child's needs, including their health, education, and welfare. Communication is the key. The problem is that the parents frequently have lost the ability to communicate. This inability has often been the main factor leading to the irreconcilable difference and the ultimate breakdown of the family. Those same non-communicating parents must now learn a inew art of communication or the custody and visitation questions will be decided for them instead of by them. 
