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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