Few situations in divorce are as sensitive as child custody. Even though California law grants joint legal custody with equal parenting time, it is not uncommon for parents to request a custody modification after the divorce. The court will first want to know details about the status quo; that is, what type of schedule is currently in use. Do parents share custody and parenting time right down the middle? Alternatively, is one parent the main, or custodial, caretaker while the other, or noncustodial parent, sees the children less often?
The court is primarily interested in protecting the child from the potential trauma of changing the current arrangement. The divorce has already disrupted the child's life. Judges often prefer to retain an acceptable status quo to avoid upending the child.
Reasons for custody modification requests
Usually, the non-custodial parent wants sole custody, but the custodial parent may ask for sole custody under certain circumstances. A parent seeking sole custody may use some of these common justifications:
- The other parent engages in unsafe or illegal behavior in the child's presence.
- The other parent is guilty of child abuse.
- The other parent is trying to alienate the child's affection.
- The other parent is uncooperative and refuses to discuss the child's needs.
- The other parent plans to abduct the child.
The parent seeking sole custody is responsible for providing proof of unacceptable or harmful behavior to the child by the non-custodial parent. If the judge is sufficiently alarmed by allegations of unsafe behavior or alienation, the court may arrange an unbiased private investigation.
The right way to hire a private investigator
At some point, acrimonious co-parents may decide on their own to spy on each other to prove bad behavior in a sole custody claim. There are some valid reasons why a parent may need professional surveillance evidence to present in court.
The issue is problematic: Will hiring a private investigator backfire? Does the investigator understand the consequences of presenting incorrectly obtained evidence in court? A judge can levy a stiff fine against the parent because the private investigator violated invasion-of-privacy laws. A parent who hires her or his own private investigator is not likely to understand how badly things can go sideways without the benefit of an experienced attorney's legal perspective.
The right way to avoid common errors in a private investigation is for parents in a custody battle to ask their attorneys about the merits of surveillance regarding their specific case. The attorney knows what type of surveillance evidence strengthens or weakens a case for sole custody. Surveillance testimony does not guarantee winning a custody battle, but it can be useful information to help the judge decide whether to award sole custody to the petitioner.