Child custody is one of the most important aspects of divorce for a parent. There are many factors that need to be considered when determining child custody and in some complicated cases, there may be a separate trial for the custody issue alone. One helpful tip to consider when approaching custody matters, is to always try to keep in mind the best interests of the children at issue.
There are two types of child custody in California: Legal Custody and Physical Custody. Legal custody determines which parent can make important decisions concerning the child’s health, safety, education and welfare. Sole legal custody means that one parent has the right and responsibility to unilaterally make decisions for the child. Joint legal custody means that both parents must share the decision-making and agree on what is in the best interest of the child. Most commonly, the courts prefer to award joint legal custody of the child unless there is a compelling reason not to order joint legal custody.
Physical custody determines time sharing of the child with each parent. Physical custody is typically joint or shared with a 50/50 time share in place, though an equal timeshare is not required. In most cases, the parents are able to work out an arrangement for physical custody that works best for the children, and then they document and submit their plan to the court. If the parents are unable to work out a plan on their own, the court will get involved to determine the best timesharing schedule for them and the child.
As a parent, you know better than anyone else what is best for your children. Davies Wegner Law recognizes this and we encourage parents to work out agreements without resorting to a court ordered parenting plan. Working together to develop a plan increases the likelihood of both parents following through with the terms, and sets the tone for future modifications as the needs of the children change when they get older.
Working together to develop a plan does not mean that parents should do this alone. In fact, both parents should consult with a family law attorney so that they are able to fully understand their rights and dutiesto be able to make informed decisions when negotiating. When parents are unable to work out an agreement themselves, they are asking a stranger, the judge, to make a decision based on what he or she thinks is in the best interest of their children.
The court uses the “best interests of the child standard” to determine an appropriate custody arrangement. interests of the child standard” under California law. The court considers the health, safety and welfare of the child, history of abuse of either parent, the amount and nature of contact the child has had with each parent, use of illegal controlled substances or abuse of alcohol of each parent and any other factors that are relevant to the determination of what is in the best interests of the child.
Sole physical custody is generally only granted if a judge has a reason to believe that the child’s well-being is in danger due to abuse or neglect by a parent. However, if the parents live in different states, it may be in the child’s best interest to stay with one parent during the school year to allow for stability.
Another factor that the courts consider is whether there is a history of domestic violence by either of the parents. A showing of domestic abuse may result in granting sole physical custody to the non-abusive parent. However, the court views a false abuse allegation very strongly and will apply the standard of an “abusive” parent to the false accuser. Child custody can be an important tool to maintain the welfare and the safety of children.
When determining custody, the court does not consider the gender of the parents. Gone are the days where mother’s were favored for custody simply under the belief that the children should be with the mother. Today, the law does not favor one parent or the other on the basis of sex alone.
Finally, when a court is decidingarrangements for a child, the issue often takes time to be resolved. A court may maintain the status quo, or request a child custody evaluator to determine the best interests of the children. Child custody evaluations generally cost $5,000 or more and are usually conducted by a psychologist, psychiatrist, or another trained specialist.
Where the parties are not able to agree to a custody arrangement for their children, custody can be a drawn-out and complex process. When the future of your child is at stake, you need to have an attorney with the knowledge to direct the process and assist in finding the best result for you and your children.
If you have any questions, or would like to speak with an experienced attorney to advise you on any concerns you have about child custody, please do not hesitate to call us at (310) 481-0300 to set up a free consultation. If you would like more information on how to resolve child custody matters without resorting to litigation by utilizing the tools mediation has to offer, please click here for our free report on the intelligent alternative to litigation.