California Child Custody Overview

The number of California residents getting divorced may be steadily declining. However, the toll a divorce can take on children of separating parents is no less significant. If you and your spouse have children and are considering a divorce it is important to understand California’s child custody laws. The better you understand California child custody laws and the options you may have, the better prepared you can be to make important decisions regarding your child’s future. If you need more assistance, contact a child custody attorney in your area for more assistance.

What is Child Custody?

Child custody is actually broken down into two distinct categories: legal custody and physical custody. Both types of custody must be arranged during a divorce or separation. Legal custody is a parent’s ability to participate in and make decisions about the well-being, safety, and health of their child. Physical custody is a parent’s right to have a physical presence in their child’s life. A parent who is not awarded physical custody – or who shares physical custody – may be awarded visitation. Visitation permits a non-custodial parent to be in the physical presence of a child.

Custody can be awarded to both parents (“joint custody”) or one parent in lieu of the other (“sole custody”). In most situations, California overwhelmingly prefers that parents share joint physical and legal custody of children. However, it would not be unusual for one parent to be awarded sole physical custody of a child while sharing joint legal custody. Several factors may be considered when determining the type of custody that is awarded (joint vs. sole) and to whom it is awarded.

Who Decides Custody?

Custody can be determined by divorcing parents or the California courts. Parents who are pursuing a divorce and agree about how custody should be arranged can define and agree to terms of custody without the influence or assistance of the courts. The terms become part of the divorce proceedings and binding when both parents sign the appropriate paperwork.

Parents who do not entirely agree to how custody should be arranged, but who want to avoid litigating the issue, can utilize tools such as mediation. In mediation, both parents present their argument for why they believe their plan for custody should be adopted. An unbiased third party mediator hears each side separately and works as a “go-between” facilitator to help the parents come to a mutual agreement.

If mediation is unsuccessful, or if parents are adamant about getting their way, custody will be decided in court. Parents who opt to take the issue of custody to court put their futures in the lives of the judge deciding the issue.

Best Interests of a Child

In California, both parents have equal rights to custody of their children. California does not – and may not – show a preference for one parent over the other solely on the basis of the parent’s sex. Rather, California courts determine custody based on what it believes to be in the best interests of the child.

A judge presiding over a child custody matter will hear testimony from parents, character witnesses, and children; review patterns of parental interaction with children; and review evidence to determine what the best interests of a child are. A judge may consider any factor that may be relevant to determining the custody arrangement that would be most beneficial to a child. The health, welfare, and safety of a child are of the utmost importance in these proceedings.

Health, Welfare, and Safety

California emphasizes the importance of the health, welfare, and safety of children. While it is believed that children generally benefit from “frequent and continuing contact” with both of the parents after a divorce, a court will not hesitate to strip a parent’s right to custody or visitation if the child’s safety or well-being were threatened. In some cases, a California parent may not be awarded custody if they killed the child’s other parent, are convicted of physical or sexual child abuse, engage in habitual illicit drug use, or show a pattern of abusive or dangerous behavior.

Consistency is Key

California courts will strive to design a custody arrangement that mimics a child’s current lifestyle as closely as possible. In these proceedings, stability is perhaps the second most important factor a judge will consider after the child’s safety.

Children generally become accustomed to certain patterns of behavior, schedules, and engaging in certain activities with specific individuals. Courts will weigh these patterns when deciding how custody should be awarded. Courts will also work to create terms of custody that keep siblings together. In California, maintaining stability in a child’s life is considered to be in the child’s best interests.

Considering Parental Influence and Engagement

California courts may not show a preference for one parent over the other solely on the basis of the parent’s sex. They may, however, show a preference based on the parent’s commitment to being an involved and engaged parent. Courts can hear testimony and review evidence to determine how involved a parent is in their child’s life and how strong a bond between a child and parent may be. The more involved a parent is a child’s life before a divorce, the greater that parent’s chances of securing custody.

However, courts will also consider the potential for abusing an award of custody. If a court believes that a parent may not foster a positive and continuing relationship between a child and noncustodial parent, the court may be hesitant to award custody to that parent. It is important for parents to show that they can put their differences aside and make parenting decisions based solely on the best interests of a child.

Kids Get a Say, Too

Children of divorce are not without a voice. California courts want to hear what kids have to say about future custody arrangements. If a child wants to speak about his or her future the court must generally listen. California does not impose an arbitrary age restriction when hearing a child’s side of the story. A child of any age can offer testimony. A judge will use his or her discretion when weighing the value of the child’s wishes. The older a child is, the more weight his or her input will have.

When it comes to child custody, California advocates for maintaining stability and promoting the best interests of a child. If you and your spouse are considering a divorce or separation you should find an experienced California divorce attorney. An attorney can help you design a child custody agreement that protects your interests as a parent and your child’s future.

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What To Expect In California Child Custody Cases

Most all divorcing parents would agree that custody, visitation, and support orders should all reflect the best interests of the children, and most all parents are also willing to make personal sacrifices for the benefit of their children.

However, as the old saying goes, the devil is in the details, because many parents disagree as to what is “best” for the children and also the extent to which they must “sacrifice” for the good of the children.

In short, that is the complex nature of child custody disputes, because no matter how passionately the parents disagree over specific issues, there is usually general agreement on major principles, and this agreement, or at least this acquiescence, often serves as the foundation for a final resolution.

The Temporary Hearing

About two or three weeks after the divorce case starts, most California family law judges hold hearings to make interim orders for child custody, child support, and other important matters. Some of these orders are common to all cases, as most judges routinely direct parties to limit their communication with one another and preserve the status quo (e.g. keep the children in their current school or daycare facility). Verifiable abuse allegations obviously change these boilerplate orders to a considerable extent.

No discovery has taken place at this early stage, so judges must make decisions, and attorneys must make arguments, based on very little information. Some useful evidence at temporary hearings includes:

  • School Records: If the children’s grades slip when they are with Father or if they have discipline issues when they are with Mother, the court will probably take these things into consideration
  • Witness Testimony: A single teacher, counsellor, or priest is much more valuable than a parade of friends and other “character witnesses.” In fact, that latter technique often backfires, because if one parent has skeletons in the closet, the other parent probably knows about them.
  • Medical Records: Some red flags include serious physical injuries, substantial psychological issues, or unstable “doctor shopping.”

There is a very strong joint custody presumption in California law, so absent serious and meritorious abuse allegations, sole custody is probably not an option. If there are concerns, judges often order parents to attend counselling or impose other restrictions.

730 Evaluation

Depending on the circumstances, the judge may order what is known as a “730 evaluation.” A 730 evaluation derives its name from California Evidence Code § 730. The court will appoint a “child custody evaluator,” as defined by California Family Code § 3110. The purpose of this evaluation is for the court obtain information relevant to a child custody determination. These evaluations are routinely ordered in the event that parents challenge custody on the basis of abuse, drug use, or any other serious allegation.

If the court does order an evaluation and you are self-represented (“pro-per”), you may want to consider hiring an attorney throughout the process. The court is likely to put much weight into the evaluator’s report. As such, you would be wise to have an attorney representing your interests throughout the process.

Mediation

Prior to a child custody hearing, you are required to attend custody mediation in California. Mediation often has some tangible benefits:

  • Civility: During mediation, the parties are in separate rooms for nearly the entire session, so there is much less emotional stress in informal mediation meetings than in showdown trials.
  • Control: In a similar vein, the parties, instead of a judge or jury, control the terms of the settlement agreement, a dynamic that often increases voluntary compliance in the months and years to come.
  • Cost: Mediation saves time by cutting the case short, and in litigation, time is money.

Mediation is not always successful and is not even always a good idea, but it is usually a worthwhile endeavor, even if one side is less than fully committed to the process. 

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What are The Different Factors That Affect Child Custody?

The legalities of child custody in divorce law are pretty complicated. A lot of factors can determine who gets custody of the child, or even whether or not if either parent will obtain custody of the child.

Child custody laws also determine the type of visitations that are granted to either parent. So, if you have got children, and are going through a divorce with your spouse, you will need to familiarize yourself with the various details of child custody laws. There are also factors that will be used by the courts to determine who will receive custody of the child.

One of the factors that the courts will look at is the health of the parent. If a parent has got a debilitating physical illness, then they are less likely to receive custody of their children. So if you have got some kind of physical illness that could prevent you from taking care of your child, you are most likely not getting custody of them. In the same vein, a parent with an unhealthy habit, such as smoking, will also not receive custody of their children. So if you are a smoker, and want custody of your children, you may want to give up smoking.

Those are not the only factors in determining who gets custody of the children during a divorce. The divorce courts will usually try to give custody of the child based on the best interests of the children standard. So they will also take into consideration the closeness of the relationship, or the emotional attachment of certain children with a specific parent. So if a child or children are closer to one parent, and if they have expressed a desire to be with that parent, then the court will most likely give child custody to that particular parent.

The financial capabilities of a parent will also be another factor in determining child custody. The more financially stable a parent is, the more likely they are to receive custody of the children during a divorce. A lot of factors are used to determine financial capabilities, such as assets, debts, and current income. So it is important that you disclose all of your financial details if you want to obtain the custody of your children during a divorce. The ability of the parent to provide for the basic needs of the child will be taken into consideration by the courts.

Learning all of these factors for determining child custody could be extremely useful. For example, if you want to get custody of your children, you may be able to use these different kinds of factors in your favor. You could also use these different kinds of factors to check who is more likely to receive custody of their children after the divorce. If you want to know more details about child custody in divorce law, you should speak to a family lawyer. They will be able to help you iron out all of the legalities when it comes to child custody and support in the divorce.

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