Family Law Corner: R&B Singer Usher Seeking Sole Custody? Not So Fast

R&B singer Usher’s custody battle has reached a new low:  according to internet sources, court documents show that both parents are seeking sole custody of their young sons.  The drama followed Usher’s move in January of this year to obtain sole custody of children after his ex, Tameka Foster, refused to allow him to take them on a world tour.  In her response to Usher’s request, Foster also requested sole custody, saying that Usher violated several provisions of their custody agreement (for example, disallowing vacation time with her during Christmas and summer, failing to give her a “right of first refusal” when he’s away for more than 8 hours, failing to get her approval on nannies) and that he should submit to drug testing because she found “mysterious pills” in his jeans in September 2008 ant that she believed he was “wasted” during a concert in Germany (video circulated widely online at the time showing Usher meandering onstage in front of the crowd).
As family law attorneys, we are often in the position of having to respond to a client who wants sole physical custody of their child due to the misdeeds of their ex.  We must explain to those clients that several factors are taken into account by a California court in making a custody order.   Pursuant to Family Code §3020(a), a Court’s primary concern is to “assure the child’s health, safety and welfare” of the minor child or children.  Further, an appropriate order must assure that children have “frequent and continuing contact with both parents” except where such contact would not be in their best interest per Family Code §3020(b).  Recognizing the court’s broad discretion, but subject to the paramount concern for child safety, the Family Code expressly establishes no “preference” or “presumption” for a particular type of custody or visitation order per Family Code §3040(b).  If the court finds the child’s best interest favors a sole parent custody order, the court is specifically directed to consider which parent is more likely to allow the child frequent and continuing contact with the other parent.
Moreover, it is just as important for a client to know their judge when making a sole custody request.  In our experience, a California court would not initially strip Usher of joint custody for violating the terms of the agreement described by Foster.  Habitual drug use is a different story:  a California court can order testing pursuant to Family Code §3041.5 if a judicial determination is made based on a preponderance of the evidence that there is “habitual, frequent or continued use” of a controlled substance.  However, it is unlikely that even court-ordered drug testing in a case like Usher’s (absent other allegations) would cause a California court to grant Foster’s request for sole custody at the outset.  A California judge would likely question the motives of both Usher and Foster in requesting sole custody based on their respective allegations.