Property Division Laws

Child custody laws and orders largely determine how a parent and child relationship will be. Child custody orders can restrict the amount of time that a parent has with a child as well as how that time is spent. Child custody may be formally ordered or the parents may reach an agreement on their own.

TYPES OF CHILD CUSTODY IN CALIFORNIA

There are generally two types of custody in California: legal and physical. Either or both types of custody may be sole or joint.

Legal custody refers to the legal ability for a parent to make decisions regarding his or her child. If the parents have joint legal custody in California, they will share in the decision-making. Decisions include making choices regarding the child’s education, health, safety and welfare. Additionally, these decisions may include choices regarding the child’s extracurricular activities, religious upbringing and other significant aspects of the child’s life. When there is joint legal custody, the parents must communicate with each other and cannot make important decisions about the child without getting the other parent’s consent. In some situations, a judge may make an order in which one parent is given the authority to make certain decisions about the child without giving an order of full sole legal custody. If a parent has sole legal custody, he or she has the exclusive right to make decisions regarding the child, although he or she may consult with the other parent. Additionally, if the noncustodial parent has the child with him or her, that parent has supervisory responsibilities during that time. Sole legal custody is not favored by California courts unless it is consistent with the child’s best interests.

Physical custody refers to which parent will have primary physical possession of the child. If one parent has sole physical custody, the child will reside with him or her and spend most of his or her time with that parent. However, the noncustodial parent may have parenting time with the child through visitation. California law recognizes the importance of the child having frequent and continuing contact with both parents. When the court determines how to award custody, it is given discretion to determine how often the parent will have access to the child.

Joint physical custody refers to both parents playing a significant role in the life of the child and having a significant amount of time with the child. The parents do not have to have 50-50 parenting time. Instead, 35 or 40 percent of the time may be considered joint custody under California law.

SAMPLE CUSTODY SCHEDULES

The court may order the parents to a certain child custody schedule or the parents may agree to one. Common custody schedules for parents who share joint physical custody include:

  • Alternating weeks so that the child spends one week with one parent and the next week with the other parent
  • Splitting the week up so that the child spends Monday and Tuesday with one parent, Wednesday and Thursday with the other parent and alternating weekends with the parents
  • Frequent overnights in which one parent has two weekday overnights, every other weekend and equally sharing the summer
  • Extended weened visits every other week from Friday to Sunday or Monday and dinner visits during the week

Example schedules for parents with sole physical custody include:

  • Every other weekend with one or two non-overnight visits during the week
  • Alternating holidays
  • Two or three two or three-week visits during the summer

Courts may order different schedules based on the ages of the children, the relationship with the child and the parent and other factors.

BEST INTERESTS OF THE CHILD

When the court is tasked with the duty of making decisions related to a child, the guiding principle is what is in the best interests of the child. This principle gives the court broad discretion when making important decisions regarding the child. This gives the judge reasonable latitude when making decisions so long as he or she does not abuse this discretion. Some of the considerations that go into a child custody decision include:

History of Abuse

If there has been a history of domestic violence in the home, this can have a direct impact on the custody decision. Under California law, there is a presumption that it is not in the child’s best interest for joint custody to be ordered.

Relationship between the Parent and Child

The court will take into consideration the degree to which the parent and child have bonded. The court strongly considers the relationship between the child and each parent. The court can consider the child’s reaction to each parent, the level of closeness between each parent and the child, who has served as the primary caregiver and other factors that relate to the bond between the parent and child. The child’s temperament, maturity, and age and the parent’s stability and personality are all factors related to bonding.

Child’s Preference

One important factor when making a child custody decision is the child’s preference. The California Family Code takes the child’s preference very seriously. However, the court does not simply rule in whatever favor the child wants. Instead, the court can take into consideration the child’s maturity, parental influence and conditioning and weigh these factors together with others.

COMMUNICATION BETWEEN THE PARENTS

The court will consider the communication between the parents when evaluating whether or not to order joint custody. One parent may frustrate or prevent communication. A parent who is not willing to engage in co-parenting and positive communication may be found not to be an appropriate selection for joint or sole custody.

Interference with the Parent-Child Relationship

In some situations, a parent may actively interfere with the child’s relationship with the other parent. He or she may make serious allegations against the other parent, such as claiming sexual abuse or child abuse. However, the court can factor in conduct by the parent that is much less egregious if it interferes with the relationship between the parent and child. The court will evaluate whether the parent’s conduct has adversely affected the child. The weight that it attributes to such misconduct will depend on how serious the misconduct is.

Parental interference may result in a change in custody. It could also result in a contempt of court action if a custody order is already in place.

Education

The court can also consider the quality of education that the child will receive with either parent and how the parent has supported the child’s educational pursuits.

Status Quo

The court will want to maintain stability in the child’s life. It may consider ways to maintain the status quo. For example, if one of the parents has moved out of the home for a substantial period of time while the other has maintained a closer relationship with the children, the court may consider keeping the children with the parent who has cared more for them recently.

Factors that Cannot Be Considered

California courts cannot consider a preference for a particular gender in their decisions. Additionally, they cannot consider the race of the parent or child. The degree to which they can consider the parent’s religion, sexual orientation or physical handicap is limited. Additionally, since child support or spousal support may be ordered, the courts generally do not give preference to a wealthier parent than a less fortunate parent. However, the time that a working parent spends outside of the home can be considered.

MEDIATION

The parents may be able to come up with their own agreement to avoid the court from making an unpredictable decision. Mediation is often an effective way for the parties to reach an agreement on their own terms that takes into consideration their particular needs as a family. Additionally, mediation is mandatory in all contested child custody cases unless domestic violence is involved.

The parties are required to attend and participate in mediation in good faith. While the parties are not required to reach an agreement, many parties involved in litigation are often able to have a successful meeting through the mediation process and to settle the case in a satisfactory manner.  Mediation in California is confidential. If the parties are unable to reach an agreement, they cannot repeat what was said in mediation. However, the mediator may report to the court that the parties participated in good faith and may make recommendations based on the conversation.

LEGAL ASSISTANCE

Individuals who are going through a child custody dispute may wish to contact a California family law lawyer. A family law lawyer can assess a case and determine its strengths and weaknesses. He or she can help identify the possible options regarding custody and represent the parent’s interests during the proceedings.