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
child custody and
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.