How Does a San Diego Superior Court Judge Decide Where the Children Live in a Paternity, Divorce or Legal Separation in San Diego in 2013?

In San Diego, the Judge is bound by the laws of the State of California and the Family Law Code. Judges have significant discretion in custody and visitation whether a legal separation, paternity or divorce case. It is important to understand that San Diego is a “recommending” County for mandatory mediation which is called Family Court Services and this procedure is the same whether a divorce, legal separation or paternity. This means that, if the parents do not reach an agreement at the mandatory mediation, then the Family Court Services Mediator will prepare a written recommendation and send a copy to the parents and also the Judge. The Judge will follow the mediation recommendation the majority of the time so it is very important to prepare for the mediation. No attorneys are allowed in mediation and the parents have to speak for themselves.

There are many family law codes which apply to custody and visitation and parenting plan issues and also discuss the standard which is commonly referred to as “best interests”. While there is no hard and fast statutory definition, the factors that a Judge in the Superior Court in San Diego will use are set out in Family Law Code Section 3011. The legislative intent toward conduct of parents is set out in Family Law Code Section 3020. The order of preference for custody is set out in Family Law Code Section 3040.

First, the Court can include any factors which they deem “relevant”. This gives broad discretion to the Judge for the parenting plan as opposed, for example, to division of a 401K which is very standard and normally divided from date of marriage to date of separation.

Second, the Court considers the welfare, safety and health of the child or children.

Third, the Court will consider any history of domestic violence or abuse, molest or neglect or habitual use of controlled substances or the [even if legally proscribed.

Fourth, the Court will consider the continued or habitual use of controlled substances or alcohol or the continued abuse of prescription controlled substances by either parent. This is not a gender issue.

This is not a comprehensive list and there are more considerations in the statute.

The safety, welfare and health of children should be the primary concern. The legislative intent is also the best interests which is described above.

This is also in the best interest of the children. The preference is to both children jointly. The Court shall consider which parent is more likely to allow frequent and continuing contact with the other parent among other factors. Again, there are more factors and this is an example.

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