Updated: Dec 5, 2022
Find a Family Lawyer in Los Angeles for Child Custody Disputes
The court will always consider what is best for the child when deciding on child custody. Although each parent can have their own ideas about how the child should be cared for,
California law requires the court to start with two assumptions. First and foremost, the child's fitness, protection, and welfare must be prioritized. Second, the court assumes that children do well when they see both parents regularly.
How is Child Custody Decided in California?
"Health, protection, and welfare" is an umbrella word used in child custody proceedings to cover various conditions and circumstances. Fathers, for example, may not have parental rights over children born due to the mother's abuse. In addition, judges are less likely to grant custody or visitation to a parent who has been convicted of child abuse, and they are more likely to restrict both if there is proof of spouse abuse, child abuse, or drug abuse.
The emotional ties between the parent and child, the parent's history of being involved in the child's life and activities, and the parent's ability to meet the child's daily needs all help a judge make a decision. The judge may also decide which parent is more likely to support the other parent's relationship and touch.
When deciding about a child's health, the child's wishes are important, particularly if the child is older or more mature. In addition, the court will make every effort to hold siblings together.
What Is Legal Custody and How Does It Work?
The right to make big decisions regarding a child's welfare, health, and education is known as "legal custody." Here are examples:
Where will a child attend school?
Whether or not a child may participate in religious events, as well as
Whether or not the child should be seen by a doctor (except in emergencies)
Joint Legal Custody
"Joint legal custody" is when both parents share the right and duty to make decisions about a child's health, education, and welfare, according to California Family Code 3003. In California, joint legal custody is common. However, just because parents have joint legal custody does not mean they will have joint physical custody based on the California Family Code 3085.
If one of the following applies, parents usually share joint legal custody:
The parents are completely incapable of making decisions together.
One parent is deemed unfit by the court.
one parent is incapable of making decisions about the child's education and overall health, or
It would be in the child's best interests if one parent had sole legal custody.
Sole Legal Custody
"Sole legal custody" is when only one parent has the authority to make all significant decisions about a child's health, education, and welfare, and such decisions can be made without consulting the other parent by California Family Code 3006. A parent's sole legal custody does not imply that he or she may not have sole physical custody.
What Is Physical Custody and How Does It Work?
After a divorce or separation, "physical custody" refers to where a child may live. Judicial custody is not the same as physical custody. The infant has the right to be physically present in the home of the parent who has physical custody. This parent is called the "custodial" or "residential" parent when the child lives with them all the time or most of the time. While the other parent is referred to as the "non-custodial" or "non-residential" parent, and he or she usually has visitation rights.
Courts must first decide the child's best interests before determining how to share custody and whether parents can have visitation rights. Courts can order supervised visits between the child and the noncustodial parent if one of the parents has had a history of domestic violence or assault.
Joint Physical Custody
"Joint physical custody" means that both parents share physical custody for extended periods of time based on the California Family Code 3004. If a child's time is split evenly or almost evenly between the parents, the parents have shared physical custody.
Sole Physical Custody
A child who has "sole physical custody" lives with one parent, with the court's permission to order visitation time with the other parent according to California Family Code 3007. A seeking parent must show that there has been a substantial change in circumstances since the last order that necessitates a new custody or visitation order in the child's best interests.
Arrangements for Joint Custody
When parents share shared custody, they usually work out a schedule that suits their work schedules, living conditions, and children's needs. If the parents cannot agree on a timetable, the court will make one for them. Children sometimes swap weeks between their parent's homes or apartments. Other provisions for shared physical custody include:
Months, years, or six-month cycles alternate.
Weekends and holidays are spent with one parent, while weekdays are spent with the other.
There is also a shared custody agreement in which the children stay in the family home while the parents alternate going in and out, spending their time apart in their own separate housing. The practice is known as "bird's nest custody" or "nesting."
The Benefits and Drawbacks of Joint Custody
The benefits of joint custody include ensuring that the children maintain contact and interaction with both parents. It also relieves each parent of some of the responsibilities of parenting.
Of course, there are drawbacks:
It is necessary to transport children.
Noncooperation or malice on the part of parents may have significant consequences for children.
It can be costly to keep two homes for the baby.
Maintain accurate and structured financial reports of your spending if you have shared custody. Receipts for meals, school and after-school events, clothes, and medical services should all be held. Your ex will argue at some stage that he or she has spent more money or assets on the kids than you have, and a judge may value your meticulous records.
Problems with Physical Custody
In an Orange County child custody case, physical custody refers to where a child lives and who provides day-to-day care. The court can generally make physical custody decisions based on the minor child's best interests according to California Family Code 3011.
The standard of best interests requires but is not limited to an examination of:
The health, protection, and well-being of the child
If one parent has a history of physical or emotional violence towards the child, the child's sibling, or the other parent
The sum (i.e., frequency) and type (i.e., supervised or unsupervised and in what setting) of communication with both parents
If any parent has abused drugs or alcohol regularly
In addition, the court strives to ensure that a child has regular and ongoing communication with each parent after separation, as long as it is in the child's best interests based on California Family Code 3020.
The custodial parent is the parent who is responsible for a child for more than half of the time. The noncustodial parent is the one who looks after a child for less than half of the time and has visitation rights with the child. Unfortunately, family law litigants associate the words custodial, noncustodial, and visitation with negative connotations. The Family Code considers two parents who spend considerable time with an infant to have "joint physical custody," but there is no requirement for a 50-50 split (California Family Code 3004).
As previously noted, the court favors the parent, who is likelier, to make the other parent's relationship with the child easier.
What is Parental Alienation and How Does it Work?
When parents fight over custody, they often say that the other parent is "alienating" the child from them, which limits the relationship between parent and child. This is a common complaint in family law and often happens in custody cases. Even though child psychologists and courts use different words than "parental alienation," the definition is well-known and considered by the courts.
So, what do you do if the other parent is causing your child to become estranged from you? You have many choices, fortunately:
You can start by getting the child into counseling. If the other party refuses to consent, you should file a motion with the court, explaining the problem and how you intend to fix it. Please include detailed examples.
You might petition the court for a modification or change of custody, putting the infant in your primary care.
You can ask the court to order a Family Code 3111 evaluation (also known as a "730 Eval"), in which a licensed child psychologist would investigate and make a recommendation to the court.
Visitation Rights Overview
One parent has visitation rights unless custody is equally divided. The parent who cares for the child less than half of the time has those rights. Visitation privileges will be granted in any manner unless it is decided that it is hazardous to the child's health, protection, or well-being.
Every family's situation is unique. As a result, studies have shown, and courts have begun to follow the premise that a custody and visitation order should be tailored to the family's particular needs, rather than the court simply rubber-stamping "standard" visitation schedules.
Unsupervised or supervised visitation is possible. Supervised visitations are rare, and they occur when one parent has shown a proclivity to harm the child in any way, so granting them unsupervised access to the child may be dangerous to the child. Unsupervised visitation may take place on any number of different schedules, including regular contact.
Types of Visitation
Custody is rarely divided equally between two individuals. Life isn't quite that easy. For whatever reason, one parent normally has a greater timeshare with their child than the other. This may be due to harassment suspicions or simply because one of the parents has migrated out of state.
The "custodial" parent is the one who has been granted more physical custody rights. The parent who is given less time with their child is referred to as the "noncustodial" parent. Even if custody is divided 51/49, this is valid.
The amount of time a noncustodial parent may spend with their child is referred to as visitation. In California, there are various forms of visitation, depending on the circumstances of each child custody case.
Scheduled Visitation. When parents decide on their own custody, they must usually establish a visitation (or timeshare) schedule. This is a schedule of when the children will see each parent. It could include vacations, holidays, or other special occasions.
Reasonable Visiting. Parents can consent to a more flexible visitation schedule if they get along. There are no fixed times or dates when the children must be with and parent in this case. Instead, visitation is decided by what is best for the parties concerned.
Supervised Visitation. If a court determines that a noncustodial parent poses a danger to a child, supervised visitation may be required. This means that the noncustodial parent cannot spend time with the child alone. Rather, the visit must be accompanied by the custodial parent, a trustworthy adult, or a specialist.
No Visitation. A court may decide that allowing a parent to have some physical contact with their child is unsafe. This may be the case if one of the parents is addicted to drugs or alcohol or has a history of domestic abuse or abusive conduct. In these cases, the noncustodial parent's right to meet with the child could be completely refused.
What are a Child's "Best Interests"?
Overall, the court tries to establish a custody and visitation schedule that is in the child's best interests. The court will consider the child's age, their relationship with each parent, the child's schedule and how it aligns with each parent's schedule, the child's education and growth, the physical distance between each parent's home and school, and any other relevant factors court.
When children reach the age of being able to talk for themselves, they are often asked for their thoughts and preferences. That age is currently 14 in California. Any 14-year-old child who wants to express their wishes is entitled to do so by statute unless the court decides on the record that doing so is not in the child's best interests.
Several key Family Code pages, such as Family Code 3020 and 3040, outline what the court must consider when assessing a child's best interests. In portion, Section 3020 states:
The Legislature considers and determines that it is the state's public policy to ensure that children's health, protection, and welfare are the court's primary concern when deciding children's best interests when issuing any orders about physical or legal custody or visitation. Furthermore, the Legislature considers and determines that child neglect or domestic violence in a household where the environment harms the child.
The Legislature considers and declares that it is the public policy of this state to ensure that children have regular and ongoing communication with both parents after their marriage or partnership has ended and to enable parents to share the rights and obligations of child-rearing to achieve this policy, except where the contact may be harmful to the child.
The order of choice for custody that the court should grant is to both parents equally first, according to Family Code 3040. If not equal to both parents, then the parent is more likely to make the other parent's relationship with the child easier. Your California Custody Attorney can ease this complicated process by effectively arguing your suitability as a parent.
Changing or Amending Custody and Visitation Orders
Custody and visiting orders can need to be modified over time. For example, when a parent's and child's lives change and develop with new experiences (such as careers, spouses, friends, or schools), the current custody or visitation order can no longer be in the child's best interests. Either parent under California Family Code 3087 may request an alteration of the terms of custody or visitation.
If the parents wish to amend the custody or visitation order, they will apply a new arrangement to the court for approval, just like any other custody-related matter. If one parent tries to change the orders and the other doesn't agree, the requesting parent must file the required paperwork with the court.
According to California law, a seeking parent must show that there has been a substantial change in circumstances since the last order that necessitates a new custody or visitation order in the child's best interests. Since the court wants stability for children, a change would only be approved if the justification is serious enough to affect the child's life.
For parents who want to learn more about modifying custody or visitation orders, the California Court website has various tools and knowledge. The website also contains links to other useful information on the site and required forms.
What Constitutes an Unfit Parent in California?
The state of California's family law policy encourages children to maintain contact with both parents regularly. Only in situations where a parent is deemed incompetent can the court rule against some form of parental touch. Typically, such cases include domestic violence, child neglect, or alcohol or drug abuse.
What Does the Judge Look for in a Child Custody Case?
After hearing all the facts, family court judges use their discretion to determine child custody issues. Their judgment, however, must consider several factors outlined by California law.
Other considerations for the courts when making a custody decision include:
What parent has been the child's primary caregiver so far?
The child's age and developmental needs
Changes in a child's home, school, and proximity to friends can have an effect on him or her.
A parent's desire and probability of helping their child to maintain a positive relationship with the other parent.
Both parents' parenting abilities
Both parents' work schedules and other obligations
The child's interests, whether he or she is old enough to make such a decision
Custody & Substance Abuse
Child custody and parenting time can be severely affected by problems of neglect, addiction, and mental well-being. Parents should have legitimate concerns about their children's safety. One parent can shamelessly portray the other as unfit to gain an advantage in divorce and custody proceedings.
Why Do Substance Misuse Impacts Custody Cases?
In California, sole physical custody and sole legal custody are rarely granted. According to the California family courts, children are better served when both parents are actively involved in their children's lives.
The only exception is when the child's well-being is jeopardized or threatened by a parent or the home environment as a result of:
Addiction to alcohol or drugs
Abuse of an infant, either physically or psychologically
Dad, mother, stepparent, or parent's boyfriend/girlfriend sexual molestation
In-home domestic abuse
Problems of mental wellbeing
Neglect of the child
An accomplished Los Angeles Child Support Lawyer will normally file a motion for sole custody or a reversal of primary custody in response to these claims. Restraining orders can be imposed against the accused parent, with only supervised visitation—if any—permitted. Children are dragged into the middle, subjected to psychiatric tests, and possibly forced to testify about a parent's intoxication, substance use, psychotic episodes, or abusive conduct.
If a settlement cannot be reached, you will need a Child Custody Attorney in Los Angeles in court if your child's welfare is at risk or joint custody is at stake.
Developing a Co-Parenting Plan of Action
Parents going through a divorce or single parents planning to divorce face the daunting challenge of establishing a co-parenting partnership that is best for the baby. When developing a child custody schedule that works, the parents must consider their work and school schedules. The primary concern must always be the children's best interests.
The best co-parenting and child custody arrangements are those that enable both parents to see their children regularly. In true joint parenting arrangements, the parents typically alternate weekends and divide weekdays according to their schedules.
In any case, it is often preferable for parents to collaborate and be flexible regarding their children's schedules. The last thing you want is a judge dictating the terms of your parenting strategy because you couldn't come to an agreement on your own. Unfortunately, there are occasions when there is no other choice.
Evaluation of Private Custody
In complicated child custody cases, high-conflict child custody cases, and cases where there are claims of substance abuse, alcohol abuse, domestic violence, or mental illness, one parent can seek the assistance of a counselor or therapist.
The group requesting a private custody assessment does so instead of going to FCS mediation, and whether the other parent agrees, the private evaluation must be ordered by the judge.
An Evidence Code "730 Evaluation" is conducted by the private custody evaluator. After meeting with both parents, the children, and all other third parties concerned with the family, the evaluator submits this report to the court. This assessment is considered admissible evidence at the child custody hearing and carries much weight with the family court judge.
Private child custody assessments are costly, but they are often well worth the money when conditions necessitate them.
Orders for Emergency Child Custody in California
Generally, a family court judge may not grant emergency custody orders unless there is proof that the minor child is in imminent danger or is about to be taken from California without the other parent's express consent.
If a legitimate threat exists, it is important that you respond quickly. Contact a Los Angeles Family Lawyer as soon as possible.
Find a Family Lawyer in Los Angeles for Child Custody Cases
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