Each state’s child custody laws are ostensibly designed to prioritize the best interests of the child in determining a parenting plan. California prides itself on fair and progressive handling of child custody, defaulting to 50/50 custody between parents whenever geographically convenient, with few exceptions.

The system sounds reasonable in theory, but it leaves very little recourse or leeway for special cases, and can be immensely hard to overturn, even if one side of the living arrangement poses a danger to the child.

A recent story in the Daily Best [link to story], titled “California’s Cruel Custody Law” tells a story of the kind of case that frequently slips through the cracks. The story centers on Allie, a young girl with recently divorced parents, in a court appointed 50/50 custody arrangement. Allie is nearly 13, which is significant, because in the state of California, Allie has little to no legal say in where she ends up. However, one could argue that her experiences — as a result of her living arrangement — have forced upon her a level of maturity far beyond what would reasonably be expected from a teenager.

Allie’s mom, Kristina, is an under employed, late thirties high school dropout, in an on-again/off-again relationship with Javier, himself unemployed and in his mid-twenties. Allie is not thrilled by Javier’s presence in the house; a sentiment Kristina seems to share from time to time, as evidenced by the fact that she has started to keep a handgun in the house “for protection.” Allie sometimes has trouble finding space to sleep when her mom’s drunken friends fill the house, and often has to remind her mom to stop for red lights.

Per court order, Allie spends Mondays, Tuesdays, and every other weekend with her mom — occasionally joined by Javier and friends — and the rest of her time with her father. Life at Allie’s father’s house is much more stable, but she dreads the Sunday nights when she knows she must return to her mother’s house the next day. Allie’s mother also has a three-year-old son, Jaxson, and Allie frequently worries that there is no one to protect or care for him when she’s not around.

One night, Allie woke up at 3 a.m. to the sound of her mom vacuuming the house. When she asked why, her mother responded by throwing a pair of scissors from the kitchen counter. Luckily, Allie dodged the projectile, and spent the rest of the night curled around Jaxson in his crib.

Does this sound like a living arrangement designed “in the child’s best interest?” As far as anyone can tell, the state of California seems to think so. Allie’s father went to Child Protective Services after the scissor incident, and attempted to find a legal way around California’s 50/50 custody rule. Family Court said it couldn’t be proven that Allie’s mother broke any laws — due to the lack of visible bruises — and a state appointed “mediator” could barely be bothered to get involved. Since Allie is not yet 14, her own preference in the matter is immaterial.

As the article concludes, “And here Allie is, not 13 yet, part-time protector of her 3-year-old brother, living with full-time anxiety, while the state of California is patting itself on the back for its progressive handling of child custody.” It could certainly be worse — if either parent moved to a different city, Kristina could very well be granted sole custody just because she is the mother — but there has to be a better alternative to the current system.

Challenges to California’s 50/50 rulings are rare, but not unheard of. If you suspect your spouse’s home could be an unsuitable place for your child, be prepared for an uphill legal battle. Even if the child is over 14, and able to express their own choice in court, the child’s choice is only one factor the court considers, and may not be reflected in the final result. Discuss your concerns with Swati Desai, family law attorney with a real affinity to child custody cases as soon as possible. The stakes are too high to leave this decision up to a court that turn a blind eye to the child’s best interests, in the name of policy and procedure.

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