California is a no-fault divorce state. There is no need to prove wrongdoing or “grounds” to end your marriage—If one or both partners want out, they can be granted a divorce based on irreconcilable differences. The court will not consider a reason or fault.
But that doesn’t mean your actions don’t matter. Regarding other significant issues in your divorce, your past and present behavior will be scrutinized, particularly regarding child custody.
By law, the court must always prioritize the child’s best interests when making custody decisions.
Best interests are a key standard in family law, but it has no fixed, straightforward definition or simple calculation. It is somewhat subjective and can be challenging to assess and apply. The judge will consider many factors contributing to your child’s physical, mental, and emotional well-being—stability, health and safety, happiness, development, relationships, and home environment. The court’s decision is based on evaluating each parent’s ability, involvement, history, health, and conduct.
In general, maintaining an ongoing, consistent, and meaningful relationship with both parents is considered in the child’s best interests—therefore, the court favors some form of joint custody. But it’s important to understand what factors can negatively influence the judge’s perception of you—especially since family law matters can become very heated. Some strikes against you, such as criminal charges, may seem obvious, while others are more subtle but still serious.
Here are 10 things that can be used against you in a custody case:
- Evidence or history of abuse. Domestic violence or any kind of abuse—physical, verbal, emotional, sexual—toward anyone in your household/family is a very serious matter that can have harmful long-term emotional and developmental impacts on your child. California law has strict requirements for investigating allegations of domestic violence. The judge may make temporary orders to protect the child while the investigation is ongoing.
- Criminal conduct or legal disputes. A criminal record or history of legal problems can impact the court’s view of your judgment, moral character, and ability to provide a stable environment for a child. The judge will consider the nature and seriousness of the crime, when it took place, and whether there is evidence of rehabilitation.
- Substance issues. A history of drug abuse or excessive drinking will raise serious concerns about the child’s safety, stability, and parental fitness. Unfortunately, children of addicts are at increased risk for abuse and neglect. If you’ve struggled with addiction or substance abuse, demonstrate to the court that you are committed to recovery and have taken active steps (documented rehab, etc.) to address the problem.
- Serious or untreated mental illness. Mental health concerns do not automatically disqualify a parent from custody. However, if severe, untreated, or not well managed with medication/ therapy, mental health issues can significantly affect a parent’s ability to maintain a safe and stable environment for the child.
- Failure to obey court orders. From child support payments to temporary custody orders to restraining orders, don’t run afoul of the judge by violating court orders. Showing disrespect for the law and the judge will damage their opinion of you, which includes being unprepared, late, or dishonest in court. Demonstrate that you are easy to work with and take your responsibilities seriously.
- Being an uncooperative ex. Effective co-parenting depends on collaboration, cooperation, and communication. A negative or difficult attitude, reluctance to get along and make things work, refusal to communicate, and so on will all call into question your ability to share parenting duties successfully and peacefully. Demonstrate your commitment to putting your child’s needs first. Focus on positive, productive communication and calm, constructive conflict resolution. Keep a record of all your interactions.
- Negative talk. The end of a marriage is painful. There’s sorrow, anger, frustration, and unresolved feelings. You’ll feel the need to vent sometimes. But yelling at your ex or badmouthing them to anyone—especially to, or in front of, your child—is a big no-no. It indicates that you are not ready to put aside conflict and hurt to work together at raising your child. Before you say anything negative, ask yourself if you would want the judge to hear it. Social media included!
- Interfering with the child’s relationship with their other parent. Attempts to distance your child from your ex by denying contact, cutting off communication, repeatedly canceling scheduled plans (especially court-ordered parenting time), or, as mentioned above, speaking poorly of the other parent to the child will hurt your case.
- Lack of involvement. The court will evaluate each parent’s ties with the child and role in their upbringing. It’s important to show active interest and involvement in their life, from day-to-day care to education, hobbies and activities, health, and important decisions.
- Moving in with a new partner before your divorce and custody case is finalized. You’re ready to move on with your life and find new love—that’s understandable. But divorce is hard on kids, a difficult transition emotionally and logistically. Show the court that you prioritize your child’s feelings, adjustment, and stability; minimize exposure to your new relationship until all legal matters are resolved.
The experienced and caring family law specialists at SFLG can help you navigate all aspects of your divorce and custody case.
by Debra Schoenberg
