Child Custody

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Child custody refers to who has legal authority over the life of a child. California makes child custody orders based on the best interests of the child. The law in California does not give preference to either parent based on the parent’s sex. In deciding on the child’s best interests, the law requires a court to consider these guidelines:

  • The health, safety, and welfare of the children; and
  • The benefit children have from frequent and continuing contact with both parents

In considering the health and safety of the child, courts in California will look into whether there is any history of abuse, prior convictions, or any habitual illegal drug or alcohol abuse.

Other factors that California courts must consider in making a custody decision are:

  • The child’s wishes if he or she is mature enough to make an intelligent decision
  • Which parent is more apt to encourage a positive relationship between the child and the other parent
  • The place that would maintain stability and continuity in the child’s everyday life

  • In divorce cases, it is automatically presumed that the married spouses are both the biological parents of all children born during the marriage. These married parents are legally presumed to have joint and equal rights over that the child until there is a court order that states otherwise. In other words, Child Custody is presumed to be shared by both parents unless a judge finds that a shared arrangement is not in the best interests of a child, or that the parents’ history of uncooperative interactions regarding child rearing that negatively impacts on the child.

  • In paternity cases, in which the parents are not married, the biological mother is presumed the sole legal and physical custodian of the child until the court orders otherwise.

  • In most cases, parents are able to reach an agreement on child related issues, so that both are actively involved in important decisions regarding the child, such as educational, medical and religious matters. Therefore, when parents have reached an agreement on child custody, the court may enter an order that essentially adopts the parents’ agreement, unless their arrangement is not in the child’s best interests. If parents cannot agree on custody, a court will have to decide how custody will be allocated – whether it should be joint between the parents or one parent should be awarded sole custody. When determining the home in which the child shall principally reside, the court strives to reach a decision that is in “the best interests of the child.” This “best interest” standard is the most important factor courts consider when deciding custody, as the decision includes consideration of the child’s health, welfare, and happiness.

Legal custody” is the right and responsibility to make major legal decisions regarding a child’s welfare, including:

  • education, such as where a child will go to school

  • medical care (except in emergency situations), and

  • emotional, moral, and religious development, including whether a child will engage in religious activities.

1. Sole legal custody

Sole legal custody means that one parent has the right and responsibility to make major legal decisions regarding the child’s welfare; including matters of education, medical care and emotional, moral and religious practice.

2. Shared legal custody

Shared legal custody means continued joint parental responsibility and involvement in major decisions regarding the child’s welfare; including matters of education, medical care, and emotional, moral and religious development.

Important note: Legal and physical custody can be split and shared between the parents. For example, it is most common for the parents to share legal custody, and the child to principally reside with the other parent. That would define that parent as having physical custody of the child subject to the other parent’s time with the child. In the event the parents cannot agree, then the probate and family court judge may use his or her discretion to decide what is in the child’s best interest.

Physical custody” refers to where a child primarily will live after a divorce or separation. The parent with physical custody has the right to have the child physically present in the home for all times that the child is not spending time with the other parent.

1. Sole physical custody

Sole physical custody means that a child principally resides with and is under the supervision of only one parent, subject to reasonable parenting time or visitation by the other parent, unless the court decides that such parenting time/visitation would not be in the best interest of the child.

2. Shared physical custody

Shared physical custody means that a child has periods of residing with and being under the supervision of each parent, and that physical custody is shared by the parents in such a way that assures the child’s frequent and continued contact with both parents.

Important note: Legal and physical custody can be split and shared between the parents. For example, it is most common for the parents to share legal custody, and the child to principally reside with the other parent. That would define that parent as having physical custody of the child subject to the other parent’s time with the child. In the event the parents cannot agree, then the probate and family court judge may use his or her discretion to decide what is in the child’s best interest.

While child custody is most commonly dealt with in divorce and paternity proceedings, it is important to note that there are three kinds of custody cases. Divorce and Paternity cases primarily involve the first type- Parental Disagreements. The remaining custody actions involve litigation between the parents and another, such as a grandparent seeking custody or visitation rights from an estranged parent of the grandchild, or the Department of Children and Families seeking to take custody from an allegedly unfit parent.

  1. Parental Disagreements: during a divorce or paternity matters, two parents cannot agree on custody arrangement; school, living, education, religious practices followed (parent v. parent)

  2. Dispute between parent and non parent: grandparent is very common; law favors parent over legal stranger (grandparent) as long as parent is acting reasonably

  3. Parent & State: State is attempting to take child away from the parent. Parent has advantage because state has to prove that the parent is unfit (more than mere preponderance of evidence)