The divorce process can be stressful, especially if children are involved. Most divorce cases involving children are characterized by stress, anger, and guilt. Even an agreeable divorce can quickly turn nasty if the parents lack a unified approach to sharing parental responsibilities.
Sadly, some parents resort to using their custody rights to punish their ex-spouse at the expense of the children. For this reason, it’s essential for every parent involved in a divorce case to understand what child custody entails, including visitation rights and legal standards that apply.
If your co-parent makes it impossible to ultimately agree on custody, you’ll have no choice but to fight back and secure a reasonable outcome for your children. To do this, you first need to learn what child custody is and how it works in California.
What Is Child Custody?
Child custody refers to the rights and responsibilities assigned to parents when taking care of their children.
Types of Child Custody in California
California has the following types of child custody:
Sole custody comes in two different forms:
Sole Physical Custody
Sole physical custody refers to a situation whereby one parent retains exclusive rights to live with the child. If one parent retains the right to have the child live with them, the parent is the custodial or residential parent. The other parent is usually referred to as the non-custodial or non-residential parent.
Most of the time, the non-custodial parent is allowed to spend time with the child through reasonable visitation. A visitation schedule must be prepared to ensure the non-custodial parent and the child spend sufficient time together. It may include alternating weekend overnight visits, holidays, or extended visitation during the summer. Both parents have to agree on the pick-up and drop-off locations and when the drop-off or pick-up will happen.
However, suppose the non-custodial parent has a history of drug abuse or domestic violence. In that case, the court may refuse to grant visitation rights or order supervised visits between them and the child.
Sole Legal Custody
Sole legal custody refers to when one parent has decision-making powers related to the child. This eliminates the conflicts that arise when both parents disagree on crucial topics.
The parent with sole legal custody decides where the child attends school, their healthcare, religious activities, and other related issues without informing the other parent. Sole legal custody can be awarded to one parent if one of the following is true:
- the parents are unable to make decisions together;
- one parent is unfit or incapable of making decisions regarding the upbringing of the child;
- it will be in the child’s best interest if only one parent has sole legal custody.
Both parents share either legal custody, physical custody, or both in this arrangement.
Joint Legal Custody
Joint legal custody allows both parents to make significant decisions regarding their child’s upbringing, health, and education. However, even if parents share joint legal custody, this doesn’t automatically mean they share joint physical custody. For example, both parents may share joint legal custody in some cases, but only one parent has physical custody.
Joint Physical Custody
Joint physical custody refers to when both parents can physically spend time with their child. The child’s time is divided equally or close to equally between the parents.
This is a rare form of custody where each parent takes custody of different children if they have more than one child.
How Does the Court Determine Child Custody?
California courts usually honor the custody arrangement agreed by parents before the divorce. However, if divorcing parents can’t reach an agreement, procedures exist to resolve custody conflicts. The procedures include:
This hearing occurs after the initial divorce papers are filed in court. If the parents have been unable to reach a custody agreement, the court will issue an order deciding the custody arrangement that will be in effect until the conclusion of the divorce case.
The court may require the parties involved in a contested divorce to work with a neutral third party to resolve their custody disputes.
If the parties can’t resolve their custody disputes through mediation, the court may order a custody evaluation made by an outside expert before trial. The expert opinion will be considered when the court awards custody.
In custody trials, the court will decide how to award custody based on several factors such as the child’s age, the physical and mental health of each parent, and the child’s wishes.
What Do Courts Consider Before Deciding Custody Cases?
California courts consider the child’s best interests before giving sole legal and/or physical custody to one parent. Most judges believe that it’s in the child’s best interest to spend time with both parents, hence awarding joint custody.
If the child is aged 14 years and above, the court may consider the child’s personal preference before awarding custody.
Most California courts tend to stick to the status quo when awarding custody unless otherwise proven. For instance, if one parent spends 90% of their time with the child, the court can award physical custody to that parent. However, this excludes parents deployed in the military or those involved in a temporary situation keeping them away from their child.
When deciding custody in California, the court may consider:
- the safety and welfare of the child;
- the amount of contact the child has with both parents;
- any other factor deemed relevant by the court.
In some cases, the court may give one parent full custody of the child. The court may award one parent full custody if the other parent has:
- committed domestic violence;
- abused the child physically or emotionally;
- a substance abuse problem;
- never cared for the child.
There are several other reasons why the court may award full custody to one parent. However, factors such as gender, race, religion, sexual orientation, or financial standing of the co-parent aren’t considered.
Speak with an Experienced Marin County Child Custody Lawyer Today
If you are contemplating filing for divorce, or are in the process of getting divorced, and need help assessing your rights pertaining to child custody, Castro Law Offices is ready and able to help. We are a premier law firm specializing divorce, child custody, and all other issues concerning California family law. Castro Law Offices is based in Novato, California, but is ready and able to provide legal services and advice to clients in and around Marin County including Novato, San Rafael, Greenbrae, San Anselmo, Fairfax, Sausalito, Larkspur, West Marin, Ross, Mill Valley and Corte Madera. Contact Castro Law Offices today to schedule a confidential consultation.