If you are getting legally separated or
divorced and you have children with your spouse, you probably have a lot of questions
about California’s child custody laws and reasonably so. In this
article, we have compiled a list of the most common questions that we
are asked by clients every day. If you have further questions or need
legal representation in a
divorce or child custody case, don’t hesitate to contact us directly for help.
Question #1. Are there different types of custody?
In California, there is legal custody and physical custody. Legal custody
refers to the right to make important decisions for one’s child,
such as decisions regarding the child’s education, extra-curricular
activities, travel, childcare, religious upbringing, medical care, and
where the child will live.
Legal custody can be sole where only one parent has it, or it can be joint
where both parents have the right and responsibility to make important
decisions about their child. Physical custody on the other hand means
who the child lives with. Like legal custody, physical custody can be
joint or sole, but if the parents have
joint custody, it doesn’t mean that the child will spend equal time with both parents.
Sometimes, both parents will have legal custody, but they won’t have
joint physical custody. Instead, the children will spend the majority
of their time at one parent’s house, but the non-custodial parent
visitation of their children.
Question #2. Do mothers get preference automatically?
Much has changed over the past 20 years, especially since we have more
female breadwinners and more women in the labor force than ever before.
Because of this societal shift, the courts have responded accordingly.
Now, mothers no longer receive preferential treatment in child custody
fathers are given equal consideration in child custody disputes and gender is
no longer a factor in the decision process.
Question #3. What if domestic violence is an issue?
If in the last five years, a parent has been convicted of
domestic violence against their spouse or the couple’s child, any of their children,
or if the judge finds that a parent has committed domestic violence against
a family member; for example, a
restraining order was issued against that parent in recent years, it can definitely affect
Usually, an abusive parent is not awarded custody of their children, but
he or she may receive visitation, whether it’s supervised or unsupervised.
However, if an abusive parent has met strict conditions set by the court
and the judge decides it is in the child’s best interests, an abusive
parent may eventually get custody of their children.
Question #4. Can an older child choose which parent to live with?
While a child’s preference, regardless of their age will be thoughtfully
considered by the judge, ultimately the decision is up to the judge, not
the child. Since children mature differently, younger children will be
heard. Judges are interested in knowing children’s reasons for preferring
one parent over the other, even if they are young, but clearly mature
for their age.
For instance, an eight-year-old child could be more mature than an eleven-year-old
child; therefore, judges are inclined to listen to children’s wishes
regardless of age, but there is no guarantee a child will get what they
want. The judge is always the decision-maker.
Question #5. Does the richer parent always win?
Contrary to popular belief, this is not the case. For example, a man and
a woman can get a divorce. The husband or father earns $300k a year, meanwhile
his wife earns a modest $40,000 a year. Even though he can afford a full-time
nanny to care for his children while he’s at work and travelling
on business, that doesn’t mean he’s the better fit.
His wife may live in a small two-bedroom apartment and drive a Kia, but
she may be closer to the children and her job may afford her to spend
a lot more time with them. So, she may be the better choice, even though
he’s a lot richer than her.
Question #6. Can I move away with my kids?
If the court awards you sole physical custody of your children, you can
move away with your children without getting your former spouse’s permission,
but if you do not have sole physical custody, we do not recommend moving
away with the children unless you: 1) get your former spouse’s permission
and get it in a court order, or 2) get the court’s permission and
get it in a court order.
If you move away with your children and you don’t have the court’s
blessing, it can backfire on you and your former spouse can fight for
the kids and possibly win. To prevent this from happening, go to court
and get its permission before you move.
Don’t Make These Child Custody Mistakes!
Question #7. Can joint custody help me avoid child support?
Most likely no. Usually, even if joint custody is awarded, the higher-earning
parent has to pay some child support. So, if you make more than your spouse,
there is a very good possibility that the court would order you to pay
him or her at least some child support.
Question #8. Does the court have to decide for us?
No, not at all! In fact, the courts encourage parents to reach a child
custody agreement between each other because they know their children
better than any judge. However, if you cannot agree on child custody,
a judge will have to decide for you.
Question #9. Can child custody later change?
Yes, absolutely and as a matter of fact, it probably will change at some
point in the future. You see, over the years, things change. Spouses remarry.
Children become teenagers and they want to live with their other parent.
And sometimes spouses move away for a new job, a promotion, or to be closer
to family. Any one of these
factors can give rise to a child custody modification and our local courts deal
with it every day.
Establishing a Parenting Plan