California Child Custody Lawyers

Child Custody – Introduction – California Family Code Section 3020

When the issue of child custody (legal or physical) arises in a California divorce or nullity proceeding, the court considers the particular needs and interests of the child. In determining which of the parents will receive custody, the court will base its order on what “seems necessary or proper” for the child in light of the circumstances (Family Code Section 3022).

Particularly crucial to the court’s determination are the dual considerations that include the child’s health, safety, and welfare as well as the interest of the child in maintaining “frequent and continuing contact” with both parents (Family Code Section 3020).

Depending on the facts and legal arguments presented during the proceedings, a court may establish a custody arraignment in which:

• One parent gains sole custody of the child,
• Both parents receives joint custody of the child,
• Or neither parent receives custody, thus putting the child in the care of a non-party guardian.

In matters of child custody, parents must attend mediation before their court appearance to see if they can reach an agreement between themselves. These agreements are highly encouraged by the courts. However, if parents are unable to reach an agreement, then the court will step in and issue an order establishing the child custody arrangements. The parent who is granted custody is referred to as the “cutodial parent,” while the other party is referred to as the “non-custodial parent.”

Maintaining a close bond with their child, even in the midst of a martial separation, is very important to many divorcing parents. For this reason, it is imperative that you seek the legal counsel and expertise of an experienced family law attorney. At Wallin & Klarich, our attorneys have been helping clients in their child custody matters for over 30 years. Allow us to put our years of experience to work for you. Call us today at 888-749-7428 or visit us online at www.wkfamilylaw.com. We will be there for you when you call.

Child Custody – Different Types of Child Custody Arrangements  California Family Code Sections 3006 & 3007

Sole Custody

A parent who is granted “sole custody” of a child has exclusive legal and physical custody rights concerning the child. This means that the child will live with the custodial parent who is empowered to make decisions regarding the child’s health, education, and welfare. Generally speaking, sole custody is rarely granted by courts, and is usually limited to situations in which one parent has been deemed unfit or incapable of caring for the child. A parent would be deemed unfit, for example, if there was evidence of drug addiction or child abuse. Although a parent may be denied access to the child in sole custody situations, the court may still grant non-custodial parents supervised visitation rights with the child.

Sole Physical Custody – Family Code Section 3007

It is possible for a parent to be granted sole physical custody without sole legal custody. Under this arrangement, the child will live under the care and supervision of the custodial parent; however, the custodial parent will not have sole decision-making power regarding matters affecting the child’s health, education, and welfare.

Sole Legal Custody – Family Code Section 3006

It is also possible for a parent to receive the sole right to make major decisions regarding the general wellbeing of the child; yet have no exclusive say in the child’s residency and care. This means that physical custody is shared between the parents by way of a custody/visitation schedule.

Joint Custody – Family Code Section 3002

Under this arrangement, neither parent has sole physical or legal custody rights. Both have the authority to make decisions regarding the child’s care and both share physical access to the child. Joint custody can be awarded for any division of time allotted with the minor. For example, joint custody can be distributed 50/50 between the parents or it can be divided 80/20.

Joint Legal Custody – Family Code Section 3003

Both parents in this situation share the right and responsibility to make major decisions that affect the child. Such major decisions involve the child’s health, education, and welfare – but they may also include matters like extracurricular activities, dating age, or methods of discipline. If the parents are unable to reach an agreement, many joint custody orders specify certain procedures for the parents to follow. Such procedures normally involve seeking mediation.

Joint Physical Custody – Family Code Section 3004

Each of the parents under this arrangement will have designated periods of physical time with the child. The primary issue here is determining how much time the child will spend with each parent. The time spent does not necessarily have to be equally split between the parents; scheduling can be very flexible as long as the child is able to maintain frequent and continuing contact with both parents.

Sometimes, the court will find that contact with neither parent would be in the best interest of the child. In these situations, custody would be granted to a third-party, such as a guardian, who will have exclusive responsibility for the care and control of the child (Family Code Section 3041). In situations where the court finds that parental custody would be detrimental to the child, the parents’ to access the child would be limited to visitation rights or terminated completely depending on the circumstances.

Child Custody – Factors the Court Considers When Deciding Custody – California Family Code Section 3011

Child custody and visitation decisions are made with the best interests of the child in mind. When determining the best interests of the child, the court will consider a number of factors that include the age of the child, the health of the child, the emotional ties between the child and the parents, and the ability of the parents to care for the child.  The court may also weigh the child’s ties to the community, friends, the family home, and the school they attend. The court will consider the interests and desires of the parents only to the extent that they affect the best interests of the child.

If applicable to the situation, a number of specific conditions may also factor into determining what constitutes the best interests of the child (Family Code Section 3011):

• History of Physical Abuse: The court must consider any history of physical abuse of the child by a parent seeking custody. A parent shown to have a history of physically abusing the child will likely be denied custody of the child. Allegations of abuse, however, must be substantiated by independent corroboration such as written reports by law enforcement or child protective services.

• Sex Crimes Requiring Sex Offender Registration – A parent convicted of a sex crime (e.g., rape or lewd acts with a minor) that requires them to register in the state as a sex offender pursuant to Penal Code Section 290, may not be awarded custody or unsupervised visitation rights.

• Child Abuse Convictions – Parents who have been convicted of inflicting physical pain or mental anguish upon a child may not be awarded custody or unsupervised visitation rights (Penal Code Sections 273a, 273d, 647.6).

• Child Conceived Through Rape – No parent who is convicted of rape pursuant to Penal Code Section 261 may be awarded custody or visitation rights regarding any child resulting from that rape offense (Family Code Section 3030(b)).

• Felonious Murder of the Other Parent – Neither custody nor unsupervised visitation rights may be granted to a parent who is convicted of the first-degree murder (Penal Code Section 187) of the child’s other parent (Family Code Section 3030(c)). However, such rights may be granted if the court finds that the conviction bears no risk to the child’s best interests.

• History of Drug and Alcohol Abuse – The court will consider, for custody purposes, the parents’ habitual or continuous use of illegal drugs or controlled substances. Whether or not the parent continuously abuses alcohol is also considered by the court when deciding on custody or visitation matters. Courts often make orders that the parent cannot consume alcohol 12 hours prior to their visit with the child.

• Environmental Stability – Although not explicitly codified in the Family Code, the court places strong emphasis on considering whether a particular custody arrangement will provide stable and continuous care and contact for the child.

• Wishes of the Child – To help the court determine which parent to grant custody rights to, the court has the discretion to consider and weigh the wishes of the child as long as they are of sufficient age and can reasonably form an intelligent preference as to which parent they would rather live with (Family Code 3042(a)). Effective January 1, 2011, courts will be required to consider and weigh the wishes of the child as long as the child is of sufficient age and can form an intelligent preference (revised Family Code 3042).

• Preference of the Court – By default, the court will want to award joint physical custody. Where appropriate, the court will try to divide physical custody evenly with both parents having the children 50% of the time. This is easier to accomplish when the children are of pre-school age or when the parents live within close proximity to each other. There are many ways to divide the timeshare depending on the facts of each case. When an equal division between the parents is not in the best interest of the child, a very common court order is to grant one parent sole physical custody while the other parent retains visitation rights. The frequency and duration of the visitation with the non-custodial parent varies on a case by case basis.

Child Custody – Procedures – California Family Code Sections

Child Custody Arrangements by Agreement or Court Order

In matters of child custody, the parents are encouraged by the court to agree to the child custody arrangements between themselves. However, if the parents cannot reach a mutual agreement, the court can bind them to a custody order.

Prior to issuing a custody order, however, courts may order an evaluation pursuant to Evidence Code Section 730. When the court makes such an order, an experienced mental health professional assesses the family, it’s members, and their underlying relationships for the purpose of making recommendations to the court regarding custody arrangements that are in the best interest of the child.

The court will also compel the parents to participate in a mediation session to work out custody or visitation arrangements prior to attending court. In the mediation session, both parents meet with a trained court mediator to work together in an effort to reach an agreement. Many contested issues of custody and visitation can be resolved in a mediation session which can result in an agreement. This resulting agreement can then be presented as a stipulation for issuance as a binding court order.

Child custody orders may be issued at a hearing any time after the filing of an underlying matter with the court. For married couples, child custody orders can be made after filing for a:

• Divorce (dissolution of marriage),
• Legal Separation,
• Annulment,
• Domestic Violence Restraining Order, OR
• Petition for Custody and Support of Minor Children

For unmarried couples, child custody order can be made after filing for a:

• Domestic Violence Restraining Order,
• Paternity Case, OR
• Petition for Custody and Support of Minor Children

How Courts Figure out the Amount of the Child Support Payments

If the parents cannot agree on an amount for child support, the court will decide on an amount based on a set of guideline calculations. Parties rarely reach an agreement on child support without the assistance of the court. In calculating the amount of child support, the court will factor in:

• The earning capacity to the parents,
• The income of the individual parents,
• The number of children from the relationship,
• The amount of time each parents spends with their children,
• The tax filing status of each parent,
• Any support the parent receives from other sources,
• Health insurance expenses,
• The cost of daycare,
• And many other factors.

Child support calculations can also include the cost of certain special needs such as the child’s travel costs for visitation purposes and the child’s educational expenses.

Child Custody – Modification – California Family Code Section 3651

Once issued, the court can modify the custody order at any time until the child reaches the age of majority, which is 18 years of age in California. The moving party may be granted a modification of the child custody arrangement if they can show a substantial change in circumstances since the last order that affects the wellbeing of the child. Such changes in circumstances may include:

• The relocation of the parents, thus making continuing contact with both parents more difficult,
• The desire of the child to increase or decrease visitation,
• The existence of child abuse,
• Scheduling conflicts (school or work),
• And a wide number of other factors that affect the wellbeing of the child.

Maintaining a meaningful relationship with their child is often a very important matter for divorcing parents. Therefore, it is very important that you seek the legal advice and expertise of an experienced family law attorney. At Wallin & Klarich, our attorneys have been in practice for over 30 years and will diligently represent your interests to the fullest extent possible. Call us today at 888-749-7428 or visit us online at www.wkfamilylaw.com. We will be there for you when you call.

Child Custody – FAQs

1. If I move out of the house and leave the children with my spouse, does it hurt my chances of gaining custody?

Yes. Even if a parent moves out the house for their own safety, and leaves the children with the other spouse, it may hurt that parent’s ability to later gain child custody. The court will take this act to mean that the other spouse is better suited to care for the child’s wellbeing and that you have no concerns about leaving your children with the other parent. Most courts also prefer to allow children to remain in the family, continue attending the same school, and maintain the status quo depending on their age. The best thing to do for a parent to do when leaving the family home is to take the children and file for temporary custody and child support.

1. If I am a custodial parent, am I free to take the child and relocate to a different location?

Depends. When a parent with custody of a child moves to a different city, state, or country, the relocation can affect the non-custodial parent’s access to the child. The custodial parent, therefore, must seek approval from the court before moving with the child by filing a move-away petition. Relocation may also be sufficient grounds for the non-custodial parent to seek modification of the child custody order; however, the non-custodial parent must also show that the move is detrimental to the child’s wellbeing.

1. Does religion play any role in determining child custody?

Generally, no. Whether a parent practices a particular religion or not is not normally considered by the court when deciding custody. Of course, if the religious practice (i.e., cults) places the child in danger or negatively impacts the best interest of the child, the court will factor that consideration in.

1. What can I do if the other parent does not comply with child custody orders?

If the other parent does not follow court custody orders, your attorney can file a motion for contempt. Through this motion, you can request attorney’s fees or have the court impose monetary sanctions until the other parent complies with the order.

1. Can a pre-nuptial or post-nuptial agreement contain provisions that dictate child custody and child support arrangements?

No. Parents cannot agree on child custody or child support issues in any marital agreement since they are viewed as rights belonging to the children rather than the parents.