When parents decide that it’s time to end their marriage, one of
their greatest concerns is child custody, especially when they predict
child custody to be a point of contention with their spouse. If you are contemplating
divorce and you have never been through the process before, you probably
have several valid concerns.
Who will the children live with most of the time? Who will pay
child support? Can one parent move away with the children? These are just a few questions that our
divorce clients ask us often. In order to shed some light on the subject, we are
going to answer a list of frequently asked questions below.
Do the courts automatically prefer mothers?
In the past, family courts showed preference for mothers but this is no
longer the case. Nowadays, fathers and mothers are given
equal consideration in child custody matters.
What are a father’s rights?
If the father was married to the child’s mother when the child was
born, the father has equal rights to child custody and visitation. However,
if a child was born out of wedlock, the biological father must establish
paternity before he has any rights or responsibilities towards his child.
How can I establish paternity?
If you are a presumed father who is not married to your child’s
mother, you can establish paternity by having you and the child’s
mother sign a voluntary
Declaration of Paternity, or by you taking a DNA test and having it compared to the child’s DNA.
Does adultery affect child custody?
Generally, no, adultery does not affect child custody. However, cheating
can be a factor if child custody is disputed and the affair somehow had
a direct negative impact on the children’s well-being.
Can a prenuptial agreement address custody?
No, California prenuptial agreements cannot leave any stipulations for
child custody. Child custody matters are the jurisdiction of the court,
a parent cannot have their right to child custody waived in any kind of
a prenuptial or postnuptial agreement.
Can my older child choose?
While a judge will definitely give an older child’s (a child age
14 or older) preference consideration in a child custody dispute, it is
not the child’s decision. The judge must weigh the facts of the
case and ultimately, the decision is the judge’s, not the child’s.
A judge will also be interested in the preference of a younger, yet mature child.
Can a parent be denied custody for domestic violence?
Yes, if a parent is convicted of domestic violence, especially a serious
case of child abuse, the parent can be denied custody, or they may be
only allowed supervised visitation.
What if we can’t agree on child custody?
The courts prefer parents to decide on a child custody and visitation
agreement between themselves, but if this is not possible, the judge will
step in and decide for them.
Can I stop paying child support if my ex won’t let me see my children?
No, you cannot do this. If you stop paying child support, you can face
a host of negative consequences, such as wage garnishment, bank garnishment,
tax refund intercept and driver’s license suspension to name a few.
What is legal custody?
Legal custody has to do with the decision-making responsibilities of a
parent towards his or her child. Such decisions have to do with education,
religious upbringing, medical decisions, and extra-curricular activities.
What is physical custody?
Physical custody means who has the child in their physical care. If both
spouses are good, loving parents, the courts will encourage joint physical
custody, even though it may not be completely equal.
If the parents have joint physical custody, it means the child spends a
significant amount of time with both parents. If the child is with one
parent most of the time, that parent is said to be the “custodial”
parent or the “residential” parent, and they typically receive
the child support.
What is a parenting plan?
This is the agreement that the parents create together, establishing the
terms of the child custody and visitation arrangement. Ideally, the parents
will create their own tailored parenting plan that serves their children’s
Can a spouse move away with the children?
If one parent has sole legal and physical custody of a child, moving away
is not usually an issue. However, if both parents have legal and physical
custody, and one parent contests the move, then a parent cannot move away
with a child without the permission from the court.
Generally, for a parent to move away with their child, they must obtain
permission from the court first. If you wish to move with your child or
contest such a move, you should retain an attorney for help.
Can the judge make a temporary order for custody?
Yes, a judge can make temporary orders for child custody while a divorce
action is pending with the court. If you are a victim of domestic violence,
or want to file for a legal separation or a divorce, you can ask the court
for temporary child custody orders. These allow you to protect your parental rights!
Does moving out of the family home affect child custody?
It can for sure. If you want to move out of the family home because you
can’t bear living under the same roof as your spouse and you want
custody of your children, you should not move out until you seek advice
from an attorney. Often, moving out establishes a new status quo and it
sends a powerful message to the judge that your spouse is quite suitable
to take care of your children.
If you desire to move out of the home and you want custody of your children,
you’re better off asking the court for temporary child custody orders
before you pack your bags. This way, you’re showing the court that
your children are VERY important to you.
Need a Los Angeles child custody attorney?
Contact Claery & Hammond, LLPfor a free case evaluation!