California Child Custody Lawyers

Child Custody – Introduction – California Family Code Section 3020

There are several things that you and your Southern California child custody lawyer must consider before entering into any custody proceeding. First, it is important to know that the court will base its order on what seems necessary or proper for the child in light of the specific circumstances of your case (Family Code Section 3022). This is often referred to as what is in the best interest of the child.

When discussing the best interest of the child, the court takes into consideration the child’s health, safety and welfare, as well as the child maintaining frequent and continuing contact with both parents (Family Code Section 3020). In other words, so long as there is no negative impact on the health and well-being of the child, the courts will try to ensure that both parents are allowed to play a role in raising the child.

Depending on the legal arguments brought forth by your Southern California child custody lawyer, the family courts may establish a custody arrangement 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.

Before any child custody hearing, parents are required to attend mediation to see if they can reach an agreement on their own. Mutual agreements are highly encouraged by the courts. However, in the event that the parents can’t come to an arrangement on their own, then the court steps in and the parent’s child custody attorneys try to win the best arrangement for their client.

Whichever parent is eventually granted custody is referred to as the Custodial Parent, while the other parent is referred to as the non-custodial parent.

Whether child custody disputes arise as the result of a divorce proceeding or is the result of unmarried parent that don’t live together, typically, both parent want to maintain a close bond with their child. Having an experienced family law attorney at your side during what can be a contentious and stressful process is crucial in helping you defend and maintain your parental rights.

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

There are several different ways the courts can determine child custody in California. Depending on your California child custody lawyer, and one of the following outcomes could result in your child custody hearing.

Sole Custody
If a parent is granted sole custody it means that they have exclusive legal and physical custody rights with regards to the child or children. The parent granted sole custody is considered the custodial parent, and the child will live with that parent. This also means that the custodial parent is empowered to make all decisions regarding the child’s health, education and welfare.

When it comes to child custody in California, sole custody is rarely granted by the courts. It is typically limited to situations in which one parent has been deemed incapable of caring for the child, or a detriment to the child’s wellbeing. Some examples that would lead the courts to granting sole custody is if one of the parents has a history of drug or alcohol abuse. Although a parent may be denied access to the child in a sole custody situation, the court may still grant supervised visits for the non-custodial parent.

Sole Physical Custody – Family Code Section 3007
There is a specific distinction between sole physical custody and sole custody. For more details, you should confer with your Orange County child support lawyer. But in short, under this arrangement, the child will live with the custodial parent. However, the custodial parent does not have sole decision making power with regards to the child’s health, education and welfare.

Sole Legal Custody – Family Code Section 3006
Similar to sole physical custody, sole legal custody has one major distinction from sole custody. In these instances, one parent is granted the sole right to make all major decisions regarding the general wellbeing of the child. But in these instances, the custodial parent does not have an exclusive say in the child’s residency and care. Physical custody is shared between the parents, and is typically divided based on a custody/visitation schedule.

Joint Custody – Family Code Section 3002
This arrangement is exactly how it sounds. Neither parent is granted exclusive physical or legal custody rights. Both parents have the authority to make decisions regarding the child’s care, and both share physical access to the child. Joint custody can include any division of time. Time with the child can be divided 50/50 or even 80/20, and each scenario is handled on a case by case basis. This is why it is important to consult a California child custody lawyer to ensure you get to spend as much time with your child as possible.

Joint Legal Custody – Family Code Section 3003
Joint legal custody is slightly more complicated than joint custody. In addition to sharing physical custody and the right to make decisions about the child’s wellbeing, both parents also have a say in other matters that affect the child. For example, the extracurricular activities that the child will participate in, methods of discipline or even what age is appropriate for the child to start dating. If the parents are unable to reach an agreement in these matters, most joint custody orders specify that the parents seek mediation.

Joint Physical Custody – Family Code Section 3004
Under this arrangement, both parents enjoy designated periods of physical time with the child. The main issue in these types of arrangements is figuring out how much time the child will spend with each parent. It is important to understand that joint physical custody does not mean an equal split of time for both parents. Scheduling can be flexible, but the most important factor is that the child maintains frequent and continuing contact with both parents.

Guardianship
In rare cases, the court may determine that neither parent is fit to care for the child. In these situations, custody can be granted to a third party. That third party can either be the State or a guardian, who will have exclusive responsibility for the care and control of the child (Family Code Section 3041). In these instances, the visitation rights of the parents would limited, or even possible terminated completely depending on the circumstances.

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

There are several factors that the court will take into consideration when determining child custody. However, one factor outweighs everything else: the best interest of the child in mind. In order to determine the best interest of the child, the court will consider things like the child’s age, health and emotional ties. It is also important for the courts to determine a parents ability to care for the child.

It is also possible that the court will weigh in a child’s ties to the community, school and friends to determine a child custody arrangement. The court only considers the interest of the parents to the extent that the affect the best interest of the child.

In some cases, extenuating circumstances can play a role in determining the best interest of the child (Family Code Section 3011).
• History of Physical Abuse: The family courts must consider any history of physical abuse by a parent seeking custody. If a parent has a proven history of physically abusing the child, they are likely to be denied custody. Any allegation of abuse must be substantiated by independent corroboration such as written reports by law enforcement or child protective services.
• Sex Crimes Requiring Sex Offender Registration: If a parent has been convicted of a sex crime and is forced to register as a sex offender under California Penal Code 290, they may not be awarded custody or visitation rights.
• Child Abuse Convictions: If a parent has been convicted of child abuse, even against a child that isn’t theirs, they may not be awarded custody or unsupervised visitation rights. Child abuse can be either physical pain or mental anguish upon a child. (Penal Code Sections 273a, 273d, 647.6)
• Child Conceived Through Rape: If the child is conceived as the result of a rape, the individual convicted of rape will not be awarded custody or visitation rights. (Family code Section 3030(b)).
• Felonious Murder of the Other Parent: If one parent is convicted of murdering the other parent, he/she may be denied custody and unsupervised visitation rights. (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: If one of the parents has a documented history of substance abuse, the court will consider, for custody purposes, the parent’s 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 visitation matters. Courts will often make orders that the parent cannot consume alcohol 12 hours prior to their visit with the child.
• Environmental Stability: Even though it is not explicitly codified in the Family Code, the family courts will place a strong emphasis on considering whether a particular custody arrangement will provide stable and continuous care and contact for the child.
• Wishes of the Child: As of 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: It is generally the wishes of the court to grant joint physical custody and try to divide that custody 50/50 between the two parents. This typically is easier when the children are younger or if the parents live within close proximity to one another. 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

When it comes to child custody in California, the parents are encouraged by the court to come to an agreement between themselves. However, when the parents are unable to reach a mutual agreement, the court can bind them to one of many types of custody orders.

The courts do have the authority to order an evaluation pursuant to Evidence Code Section 730 prior to making a custody order. When the court makes such an order, an experienced mental health professional assesses the family, its 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.

In addition to the evaluation, the court will likely compel both parents to participate in mediation to work out the custody and visitation schedule before attending court. In these sessions, both parents meet with a trained court mediator to work together in an effort to reach an agreement. Most of the time the contested issued of a custody dispute can be resolved through mediation, and any agreement can then presented to the courts to be made a binding order.

Child custody orders may be issued at any time after the filing of an underlying matter with the court. In the instance of married couples, child custody orders can be made after filing for any of the following:
Divorce
Legal Separation
Annulment
Domestic Violence Restraining Order
Petition for custody and support of minor children

For unmarried couples, child custody order can be made after filing any of the following:
Domestic Violence Restraining Order
Paternity Cases
Petition for custody and support of minor children

How Courts Figure out the Amount of the Child Support Payments
Once child custody has been established, the next thing the courts must figure out is child support. If the parents cannot agree on an amount, the courts will decide based on a set of guideline calculations. It is extremely rare for parents to reach an agreement on child support without the courts stepping in. When calculating child support, the courts will base their decision on the following. Click here for a more detailed look at Child Support in California:
The earning capacity of the parents
The income of the individual parent
The number of children from the relationship
The amount of time each parent spends with their children
The tax filing status of each parent
Support the parent receives from other sources
Health insurance expenses
Daycare costs

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 an order for child custody in California has been ordered, the courts can modify that order at any time until the child reaches the age of 18. Either parent can be granted a modification of the child custody arrangement provided they show a substantial change in the circumstances since the last order was put into effect. Such changes in circumstances can include, but aren’t limited to:
- If one parent relocates, thus making continuing contact with both parents more difficult
- If the child desires to increase or decrease visitation
- The existence of child abuse
- Scheduling conflicts that may arise due to school or work
- Or any of a wide number of factors that can affect the wellbeing of the child

For parents, whether they are married or not, maintaining a relationship with their child is a very important matter. In order to enjoy as much time as possible with your child, it is important to consult with an Orange County child custody attorney as soon as possible.

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.