Legal Remedies That a Court Can Order Before Modifying Custody in California

During the pendency of a proceeding where the custody of a minor child is in issue, the court may make whatever temporary custody order that “seems necessary and proper.” [Fam. C. §§2045(b), 2047, 3021, 3022, 3060 et seq., 6323(a)]

A court may appoint counsel for the minor on the court’s own motion or, if requested, upon the determination that it would be in the child’s best interest in a custody proceeding.[Fam. C. §3150(a)]. The more common remedies are appointing minor’s counsel, appointing a custody evaluator, or ordering joint counseling.

In appointing counsel, the court will take into account the following factors: (1)  The issues of child custody and visitation are highly contested or protracted; (2) The child is subjected to stress as a result of the dispute that might be alleviated by the intervention of counsel representing the child;(3)  Counsel representing the child would be likely to provide the court with relevant information not otherwise readily available or likely to be presented; (4) The dispute involves allegations of physical, emotional, or sexual abuse or neglect of the child; (5) It appears that one or both parents are incapable of providing a stable, safe, and secure environment; (6) Counsel is available for appointment who is knowledgeable about the issues being raised regarding the child in the proceeding; (7) The best interest of the child appears to require independent representation; and (8) If there are two or more children, any child would require separate counsel to avoid a conflict of interest. [California Rules of Court 5.240]

To assist in making a change in a custody determination, a court may also appoint a child custody evaluator to report on the best interest of children. [Evid. Code, § 730; Cal. Rules of Court, rule 5.220(b)]. An evaluator has certain ethical obligations, including maintaining objectivity, providing and gathering balanced information for both parties, and controlling for bias. [Rule 5.220(h)(1)]. All evaluations must include a written explanation of the process that clearly describes the following: the purpose of the evaluation; procedures used and the time required to gather and assess information; scope and distribution of the evaluation report; limitations on confidentiality; and cost and payment responsibility for the evaluation. [Rule 5.220(e)(1)].

Additionally, the court may require parents or any other party involved in a custody or visitation dispute, and the minor child, to participate in outpatient counseling with a licensed mental health professional or through other community programs and services that provide appropriate counseling, including, but not limited to, mental health or substance abuse services, for not more than one year, provided that the program selected has counseling available for the designated period of time if the court finds both of the following: (1) The dispute between the parents, between the parent or parents and the child, between the parent or parents and another party seeking custody or visitation rights with the child, or between a party seeking custody or visitation rights and the child, poses a substantial danger to the best interest of the child (2) The counseling is in the best interest of the child. [Fam. C. §3190]

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