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Child Custody 2017-09-28T18:55:50+00:00

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 age of the child.
  • The health of the child.
  • The emotional ties between the parents and the child.
  • The ability of the parents to care for the child.
  • Any history of family violence or substance abuse.
  • The child’s ties to school, home, and his or her community.

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

  • School or child care.
  • Religious activities or institutions.
  • Psychiatric, psychological, or other mental counseling or therapy needs.
  • Doctor, dentist, orthodontist, or other health professional (except in emergency situations).
  • Travel.
  • Sports, summer camp, vacation, or extracurricular activities.
  • Residence (where the children will live).
  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.
  1. Joint legal custody
    Joint 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 (i.e physical custody). 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
Physical custody” refers to where a child will primarily 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 by the other parent, unless the court decides that such parenting time/visitation would not be in the best interest of the child.
  1. 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: (1) parent versus parent, (2) parent versus non-parent or (3) parent versus state. 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).

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.

What is a parenting plan?

A parenting plan is sometimes called a “custody and visitation agreement.” This is the parents’ written agreement about time-share and decision-making. Time-share is a schedule for when the children will be with each parent. Decision-making is how the parents will make decisions about the health, education, and welfare of the children. The purpose of a parenting plan is to maintain the best interests of the children and avoid conflict between parents. The parenting plan becomes a court order after it is signed by both parents, the judge, and filed with the court.

 

What should be in a parenting plan?

Parenting plans can be general or specific. Parenting plans typically include plans for weekdays, weekends, holidays, vacations, cost of transportation for visitation, and restrictions on traveling or moving with the children. When making your parenting plan, it is helpful to refer to the following forms:

Child Custody and Visitation Order Attachment (FL-341)

Child Custody and Visitation Application Attachment (FL-311)

Supervised Visitation Order (FL-341(a))

Child Abduction Prevention Order Attachment (FL-341(b))

Children’s Holiday Schedule Attachment (FL-341(c))

Additional Provisions—Physical Custody Attachment (FL-341(d))

Joint Legal Custody Attachment (FL-341(e))