Can I get a divorce without a custody battle?

The operative word in that inquiry is “battle.” Yes, you can get a divorce without the decisions about your children’s custody elevating the temperature in the room. What you cannot do, however, is get a divorce without impacting your children in some way or another.

Your children belong to both of you. As much as possible, family law courts in California try to award joint legal custody to both parents in a divorce settlement. Typically, just one parent gets primary physical custody of the child, i.e., the child lives with and spends most of their time with that parent. The second parent is then expected to spend significant time with the child and to contribute financially toward the care of that child whether or not they spend time.

The process of deciding on these child support and custody arrangements can be intense. Whether it becomes an outright “battle” depends on the ability of the parents to work together cooperatively. Such litigations can extend the overall divorce process by many months and drive costs up tremendously. However, the worst effect is the antagonism that it builds between the parents, taking an already lousy experience for their children and making it worse. It is far better to try to work together amicably if only to protect the children’s peace.

It is possible to avoid an outright child custody battle so long as both parties are willing to work hard at the task. An uncontested divorce, in which the terms are immediately agreeable to both parties, is the easiest, fastest, and least expensive option. But even if there are disagreements at first, they can be resolved directly or with the help of a neutral, third-party mediator. The real problems exist if the divorcing parents are unable to work together toward an amicable and mutually agreeable solution. In that case, disputed child custody decisions over legal custody, physical custody, timeshare, visitation, vacations, support, etc., will be by court order, with all of the emotional and psychological trappings of a litigation process.


What happens in a divorce custody battle?

When the petitioner (the spouse that files the original paperwork) initiates the divorce, they must supply to the court all necessary information about any children involved, as well as submit any requests for necessary temporary orders surrounding child support and child custody. This time is also when they draw lines and establish their terms in the custody battle. Upon being served their papers, the respondent spouse is allowed 30 days to submit their counter-claims. There will likely be a significant disparity between the petitioner’s and the respondent’s requests. Those differences will have to be hammered out in the discovery and negotiation stages to come.

The discovery period is when each party requests relevant information from the other party and provides information to the other party based on that party’s requests. It is also the time when each spouse may produce an attempt to unearth evidence that challenges the other parents’ fitness to provide a safe and nurturing environment for their children. Available finances play a role in determining which home might be a better one for the children, but not as much as people may think. There are many situations in which the parent with a higher income may have less capacity to care for any children, thus resulting in the mediator or judge granting the lower-income parent physical custody of the children.

If attempts to negotiate child custody arrangements fail outside of court, a judge will have to step in and make those decisions for them. The judge will consider factors such as the age and health of the child, their emotional ties to each parent, the child’s current living and educational situation, the physical and mental health of the parents, and, of course, any history of abuse or substance addiction on the part of the parents. Depending on the child’s age, the judge may speak with them in camera (“in the chamber,” i.e., not in the courtroom on public record) to find out their preferences. 

Though the judge will do their best to make an impartial decision based on the available information, they still do not have any direct and personal connection with the child, and the final decisions are unlikely to seem satisfactory to anybody. This is one of many reasons why it is best to avoid getting the courts involved when possible.

We should also note that an uncomfortable byproduct of a court-ordered custody arrangement is that any produced evidence of a spouse’s fitness (or unfitness) to be a parent becomes a matter of public record: the family’s dirty laundry is hung out for the world to see.

Sometimes, especially if the negotiations are highly contested, the court will appoint a guardian ad litem (a guardian “for the suit”) to watch over the child’s needs. This guardian can be anyone over the age of 18 and serves in their capacity for only this particular case. Their opinion carries a lot of weight, and if they believe the child’s interests need to be prioritized, they can make their own official recommendations.


Best tips for surviving a divorce custody battle.


#1: Do what is right for your children.

The buzzword in family law is “the best interests of the child.” The bias for joint legal custody mentioned above is subservient to the higher goal of maintaining what is best for the child’s health and welfare.

Unfortunately, children can become the rope in a tug-of-war match between divorcing parents. Perhaps even imperceptibly, the parent’s focus may shift from what is genuinely in the child’s best interest to what is in their own best interest.

For instance, one parent may feel hurt and betrayed by the behavior of the other parent, and they may feel tempted to hold out on the visitation rights of that other parent as a means of “punishing” them. Not only is such action illegal, but it also ends up hurting the child in the long run. It may be surprising to learn that even one parent’s failure to pay child support is not grounds to reduce their visitation rights, thus highlighting the importance of protecting the child’s long-term well-being.

While negotiating child custody, take a step back and ask yourself what is truly best for the child: What gives them the most stability, the most opportunity, and the greatest chance of success in their future? Let those questions, then, guide your decisions and not just your personal preferences.


#2: Operate in the truth.

California is a “no-fault” divorce state, meaning that one spouse doesn’t need to provide evidence of any dereliction of matrimonial duty on the part of the other spouse to prove that the divorce request is legitimate. However, when it comes to child custody battles, the court needs to know the parents’ character and behavioral tendencies to render a decision that is truly in the child’s best interests.

It may be tempting to exaggerate or outright lie about things your ex-spouse said or did to sway the opinion of the judge in your favor; we strongly advise against doing so. Evidence that you present carries with it the potential for a perjury charge against you if the evidence is found to be false. Perhaps worse than that is the likelihood that it will backfire on you and hurt your relationship with your children. 


#3: Be on your guard.

Be careful what you say. While true that it is illegal in California to record a private conversation without the full consent of all parties to that conversation, caustic or aggressive remarks, especially if said around your children, can still be brought up in discovery and used to influence custody decisions. Furthermore, as long as they are provably authentic, text messages, emails, and social media posts are all fair game too. And do not track the movements of the other party through phone Apps or other devices. This is seen as stalking and an act of domestic violence.

Be careful of any actions you take as well. Naturally, any abusive behavior will negatively affect your chances of achieving primary custody of your children, and so can other potentially harmful activities like excessive partying or flaunting a new romantic relationship. The best advice is to live responsibly – as if you are being watched, because in a sense you are – to show the court that your children will be in a safe and nurturing environment when they are with you.


#4: Abide by final decisions.

This may be a hard one, especially if you think that those decisions are unfair. However, once the judge has made an order or signed the divorce decree, its contents are legally binding for the parties involved. You do not have the right to arbitrarily and unilaterally decide to alter those decisions. Doing so will likely land you in court on a contempt charge, which is punishable by fines and possibly jail time. Those items on your record will not help you in your cause.

If you genuinely believe that the child custody orders and visitation rights stipulated in your divorce settlement are not fair, or if you think that either your circumstances or those of your ex-partner have changed to the degree that those orders need to be amended, you will need to file for new orders using the proper, legal channels.

Throughout the process of your divorce, especially if you have children involved, the value that comes from the services of an experienced and knowledgeable family law attorney cannot be overstated. At Silva and Associates, our team of lawyers has handled many divorces involving complex child custody battles. Reach out to us today, and let us put that experience to work for you and your family.


Divorce custody battles FAQs


Q: When can you get child custody orders?

A: You can get custody orders as soon as the parents are no longer living together after the divorce or paternity action has been filed. Child custody orders can either be temporary (intended for only a certain period of time) and modified at any time, or more permanent, which require a change of circumstances or other factors to modify the order with the guidance of a child custody lawyer


We work with therapists and other experts to make sure that your concerns are heard, and your relationship with your children is as strong as possible. Our East Bay team of child custody lawyers can help you develop a plan and help you put the right foundation in place so you can avoid future conflict and litigation.


Q: Who will get custody of the children?

A: The court prefers for parents to create their own plan for custody. If both parents cannot agree on a plan, the court will try to determine what is in the best interest of the child. This determination is not based on who is the “better parent,” but rather on which parent is best able to care for the child, encourage continuing contact and visitation with the other parent, and other factors, such as a history of abuse or addiction. There is no set custody plan that the court implements – neither parent is given priority for custody (for example, mothers do not automatically get more time than fathers). Rather, the court encourages an equal share of time between both parents, if possible.


Grandparents also have rights to see their grandchildren that can be enforced under certain situations. We can help you understand your rights if your ability to see your grandchildren has been terminated.