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Child Custody: When Parents Can't Agree

For parents getting a divorce, there is no question that one of the most sensitive issues they will have to face is over child custody and visitation. If you're lucky, you and your spouse will come to an agreement amicably over where the children will live and how much time they will spend with each parent. However, if you're not one of the lucky ones who will move through the divorce transition with ease, you may be very concerned over matters pertaining to child custody and visitation.

You know your spouse better than anyone, and if you are worried, then your concerns most likely have merit. Perhaps your spouse threatened that if you ever leave he or she will get the kids, or you will never see the kids again. It's situations such as these that actually prevent unhappy couples from getting a divorce in the first place. Fortunately, under California law and as a parent you have rights, especially if you don't have an alcohol or drug abuse problem and providing that domestic violence (spousal or child abuse) is not a factor.

First and foremost, your attorney will attempt to get your spouse to work out a parenting plan where you both can come to some kind of an agreement. In California, there are two types of custody: legal custody and physical custody. Legal custody refers to making important decisions for your child such as where they will go to school, which doctor they will see, and what religion they will be raised in, as well as psychiatric, psychological, or other mental health counseling, whereas physical custody refers to which parent the child will live with.

Legal custody can be joint or it can be granted to one parent, this is called sole custody. Physical custody can be joint where the child lives with both parents, this is especially convenient where the parents live close to each other, or it can be sole or primary where the child lives with one parent and visits the other parent as in every other weekend etc.

Since it's difficult for parents to share an equal amount of time with the kids, especially considering school and extracurricular activities, joint custody usually means that the child spends more time with one parent than the other. The parent who has the children more than half the time is referred to as the primary custodial parent.

Best Interests of the Children

There are circumstances where two perfectly good parents simply cannot come to terms over a child custody and visitation agreement, this is one of the most common reasons for a contested divorce. Under California law, the judge is required to award custody based on the "best interests of the child." In order to determine which parent is better suited the judge will evaluate:

  • The age and health of the child;
  • The child's emotional ties to each parent;
  • Each parent's ability to support the child and care for them;
  • Any history of spousal abuse, child abuse, or sexual abuse;
  • Any history of alcohol or drug abuse; and
  • The child's ties to their school, friends, extended family members and the community.

It's important to note that the California courts do not automatically award custody to a mother or a father and the courts cannot deny custody or visitation based on a physical disability, a different lifestyle, sexual orientation, religious beliefs, or because you were never married to the child's other parent. When a child custody order is made, there will also be an order over child support and visitation; however, keep in mind that just because the other parent denies access to your children, you cannot stop paying child support. To learn more about child custody and visitation in California, please contact an attorney from Claery & Green, LLP today.