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Law Office of

Robert D. Fischer

(714) 663-8200

rfischer@divorcelawoc.com

​Children and Divorce
      Arguably, the most difficult decision the Court will have to make will involve your children.  In most contested cases, child custody is at the center of the conflict. Children, unlike property, do not fit nicely onto a balance sheet. It can be extremely difficult to resolve you and your spouse’s difference when it comes to the kids.
The fundamental goal for the Court is to make orders that are in the children’s “best interest.” Obviously, the best solution for you and your children is for you and your spouse to come up with a schedule (often called a “custodial timeshare plan”) that is best for them.  Unfortunately, that is often more difficult than one would think.
    When asked to determine custody issues, the Court has several resources available to it.  First, any time the Court is asked to determine custody, you and your spouse will be required to attend “mediation.”  Mediation differs from county to county.
In Orange County, for example, the mediation appointment is confidential and the mediator generally does not make recommendations to the Court.  In Riverside County, however, the mediator not only discloses portions of what the parents discuss, that mediator will make  recommendations to the Court.  It is important for you to talk to your attorney about mediation and how best to present your case for
your children’s best interest before attending your appointment.
     Another tool the Court has at its disposal is the assistance of experts to help determine what is best for the children.  The Court can appoint a “child custody evaluator” to complete an evaluation and offer the Court an opinion as to what type of custodial timeshare is in the children’s best interest.  The down side to this is that they can be very expensive.
The Court can also appoint an attorney to represent the child or children or appoint an attorney for each.  Their role is to represent the child's best interest.  They must gather facts that bear on that child's best interest, and report those facts to the Court.  This may include a child's preference as to custody. 
       In California, a child of “sufficient age and capacity” can state a preference regarding custody.  The Court, however, has tremendous discretion in how much weight it will give that child’s preference.  (You may have noticed that I have not used the term “visitation.”  I do not believe a parent visits his or her child.  I believe their role should be much more significant.)  Fortunately, the Courts more and more are realizing the importance of counseling, workshops, seminars and other children’s programs to assist families and their children to understand the emotional and financial challenges associated with a divorce.
     A big part of a custody case is child support.  Under California law, child support is determined by an algebraic formula that takes into account the net spendable income of you and your spouse and how much time each of you spends with the children.  This amount is calculated by various computer programs, the most popular being “Dissomaster” or “Xspouse.”
      In addition, most or all other states have a governmental agency that assists with establishing and enforcing child support orders. Here in California, the agency is called the Department of Child Support Services.  This is a free service to any parent wishing to establish or enforce child support.  In addition, if a custodial parent is receiving public assistance, the Department will initiate a case for the collection of child support on behalf of that parent.
      This is just a brief overview, which we hope will help in understanding the very basic issues concerning your children in your divorce case.  Each divorce case presents different and difficult challenges.  No two divorces are the same.  Your matter will bring its own facts, circumstances and challenges that will be unique to your case.  For additional information regarding these very difficult issues, please feel free to contact our office for a consultation.