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California's Current Trends in Custody Law

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My name is Jon D. Alexander, Esq. and I am an Orange County, California Divorce Attorney. This article is the seventh in a series outlining the divorce process in California. Please be aware that this article is not intended as and should not be relied upon as legal advice or as the creation of an attorney-client relationship.

This article explains the current trends that courts in California follow when determining child custody. There are two primary approaches to child custody: (1) Judith Wallerstein approach that favors the one psychological parent concept; and (2) Maddis Hetherington approach that recognizes that children bond with both parents not just one. The Hetherington approach stresses: (1) Powerful child-caretaker relationships; (2) Brainpower; (3) Nurtured talent; and (4)Nurtured belief system.

Here are some relevant cases illustrating these opposing ideologies. In Young vs. Hector (a Florida case), the Father stayed at home, Mother an attorney was always working and never around. The Court appointed expert recommended custody be awarded to the mother because of her economic stability.

The Appellate court reversed the trial court's custody decision and held that the court should preserve the roles the parties themselves established, that is, the stay-at-home Father was "the primary caretaker" and the Mother was the worker/breadwinner. The Appellate Court held that financial stability could be provided via child support. This case, although a Florida case, demonstrates the general inclination that California courts now have. This case is a great example of the gender differences that historically favored the mother, which have now shifted to keep pace with the times.

In Wainwright, the parents mutually decided that there would be no drug use while each had custody obligations. However, the couple's 6 year old upon returning to Mom from Dad's house promptly reports that Dad has been smoking marijuana. The Dad in this case did have a prescription for medical marijuana use from his Doctor. Nonetheless, the Mom seeks an order from the court for a hair sample to confirm he was using marijuana. The Court of appeal denied to issue this order because of constitutional privacy issues.

In re Marriage of ("IRMO") Schiffman the issue was which parent has the authority to decide a child's last name (surname). This case adopts the best interest test in this context and placed the burden of proof on the person seeking a name change. The court considered how the name has been used and the symbolic role of the name for the particular family. The court even considered whether the child would be embarrassed because he has a different name than other members of his family.

IRMO Douglas, here a pregnant mom wanted to give her child her former name. Before the child was born, the dad brought a motion for a pre-custody order and a surname order, mandating that his surname be given to the child. The trial court "split the baby" by ordering a hyphenated name but finding that it was too early to ask for custody. The court of appeal affirmed, holding that the Schiffman case was not controlling. While the court did not approve of the hyphenated name it recognized that the trial court had the authority to make such an order. The important difference for the court between Douglas and Schiffman was that the child was unborn so the best interest test is inapplicable leaving the decision within the Judge's discretion.

In our finally case law example, Camacho v. Camacho the Mom wanted to end the Father's visitation asserting that he was "emotionally immature." Mom sought an order mandating Dad to receiving counseling. The trial court granted the counseling order but was reversed on appeal. The appellate court held that a parent need not be "emotionally mature" to visit his/here children. The court decided that children should be able to have the experience of both parents even if one parent is immature, unless said immaturity is detrimental to their safety.

In my next article, I will delve further into counseling and special issues like minor's counsel. In the meantime, if you have any divorce or family law related questions please contact me at your convenience. You can reach me directly at my website linked below or you may email me Jon at
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