Child Custody – Introduction – California Family Code Section 3020
Child custody describes the legal relationship between a parent and his or her child in which the parent has the right to make decisions for the child and the parent has a duty to care for the child.
Child custody becomes an issue when you separate from your spouse. If you and the other parent separate amicably, you and the other parent can agree on a parenting plan which details the period of time you and the other parent has custody of your child. But if you and the other parent cannot agree on a parenting plan, the court will have to decide on a parenting plan that is based on the best interest of your child.
(audio)How does the judge decide who should have custody of my kids
There are two types of child custody orders that can be granted by a judge:
A legal custody order designates whether you, the other parent, or both has the right and responsibility to make important decisions for your child, such as health, education, and welfare. Thus, there are two types of legal custody orders:
- Joint Legal Custody (Cal. Fam. Code. § 3003): This order means that you and the other parent share the right and responsibility to make decisions relating to the health, education, and welfare of your child.
- Sole Legal Custody (Cal. Fam. Code § 3006): This court order gives either you or the other parent the exclusive right and responsibility to make decisions relating to your child’s health, education, and welfare.
A physical custody order designates whether the child will reside with you or the other parent. Thus, there are three types of physical custody orders:
- Joint Physical Custody (Cal. Fam. Code § 3004): This court order means that you and the other parent shall have significant periods of physical custody of your child.
- Sole Physical Custody (Cal. Fam. Code § 3007): This court order means your child will exclusively reside and be under the supervision of you or the other parent. If a court grants sole physical custody to you, the other parent may be given visitation rights if it is in the best interest of your child.
- Primary Physical Custody: Usually, when a court grants joint physical custody, your child will not spend equal time with you and the other parent because of obligations such as school or work. If you spend more than half the time with the child, you are considered the “primary physical custodial” parent.
In child custody cases, the court will always be guided by the best interest of the child. Thus, all legal custody orders, physical custody orders, and visitation orders are based on the best interest of your child.
In deciding what is best for your child, the court will consider the following factors:
- Age of your child;
- Health of your child;
- Your and the other parent’s ability to care for the child;
- Emotional relationship between you and the child and between the other parent and the child;
- If you or the other parent have any history of domestic violence or substance abuse;
- Where your child goes to school; and
- Your child’s involvement in the community.
Winning A Custody Battle
In order to win primary physical custody of your children, you and your California child custody lawyer must show that it is in your child’s best interest that they live with you more than with the other parent.
The evidence you will provide at a child custody hearing will have to do with how you will “parent” your child if you are awarded primary physical custody. This evidence can be from both testimony as well as documentary evidence. The court will want to know what school your children will attend, who will be caring for the children when you are at work, how you will monitor their school work, what type of environment they will be living in, and many other factors.
In addition you may want to bring to the courts attention what you believe are “parenting flaws” in the parenting skills of the other parent. These don’t have to be obvious problems like a domestic violence conviction or alcoholism — although these would certainly be evidence of bad parenting. They can also be things like a very busy work schedule that takes time away from the children, or past interference with your visitation rights. Your custody lawyer can help you identify ways to prove that you are the parent who should have primary physical custody of your children.
If the judge in your case believes you and the other parent can still reach an agreement, he or she has the right to send you to mediation. Mediation is an out-of-court process for resolving disputes, in which a judge-like expert in custody law helps you discuss your differences. If you come to an agreement in mediation, you can go back to court with a parenting plan ready for the judge’s approval.
Enforcing a Child Custody or Visitation Order
Most parents stick to parenting plans that work for them. Unfortunately, there are parents out there who are irresponsible about keeping custody or visitation appointments, or deny visitation to “get back” at the other parent. If you are consistently having trouble getting the time with your children that you’re entitled to, you can take legal action to enforce your custody and visitation rights.
First, if the other party has missed their scheduled visitation on more than one occasion, you may want to address the problem by changing your custody or visitation plan. If you don’t feel that you can talk to the other parent directly, or if he/she is not responsive, the experienced California family-law attorneys at Wallin & Klarich will negotiate with the other parent, or his or her lawyer. Having an experienced, knowledgeable advocate on your side shows the other parent that you’re serious about enforcing your parental rights and allows a knowledgeable advocate to negotiate and fight for a visitation schedule that is more desirable to you.
If you’re sure that the other parent is intentionally withholding visitation or custody, you can take several legal actions. If you believe the other parent is withholding or trying to kidnap your children, you should go to the police, a district attorney in your area as soon as possible or file for an ex parte (emergency) hearing. An Orange County child custody attorney at Wallin & Klarich can help you petition the court for a temporary immediate change due to the other parent’s dangerous and irresponsible behavior. After the ex parte hearing, the court will set a follow-up court date, where an experienced Wallin & Klarich attorney can assist you in getting a permanent order.
If the other parent’s interference with custody is less drastic, you should file for contempt of court. Custody orders are court orders — which means that people who violate them can be held in contempt of court. In California, a parent found guilty of violating a family-law court order can be held in county jail, be fined or ordered to do community service. In order to prove that the other parent has violated a custody or visitation order, you’ll have to show that he or she was fully aware of the order and intentionally did not follow it. The Los Angeles child custody lawyers at Wallin & Klarich can help you find evidence to prove your claim and back it up in court.
Some parents find themselves on the receiving end of efforts to enforce a custody or visitation order. This often happens when one parent withholds visitation because the other has not paid child support. Some parents believe that this is legal, but it’s not — you cannot legally deny visitation because the other parent missed payments. If you do, you risk being sent to jail for contempt of court. Withholding visitation can also hurt you in any future custody dispute, because the other parent can use it as evidence that you did not act in the best interests of your children. If you’ve made this type of mistake, Wallin & Klarich can defend you in court and explain your reasons. Our Southern California child custody lawyers can also help you get missed child support payments with a contempt-of-court order of your own, or other legal measures.
Where can I find an experienced child custody attorney in California?
If you are facing child custody issues, then it is essential that you contact an experienced child custody attorney from Wallin & Klarich. We have over 30 years of experience in dealing with child custody cases. We have the knowledge and know-how to help you get the best possible result in your case. With offices located throughout the Los Angeles, Orange, Riverside, San Bernardino, San Diego and Ventura counties, we are always available wherever you happen to live.
Call us today at (888) 749-7428. We will be there when you call.