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How Child Custody is Determined

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Whenever child custody is a topic of debate or a contested issue, several factors will be considered. If you are a parent who is going through a divorce and you have minor children with your spouse, child custody will need to be determined and memorialized in a court order.

Who will the children live with most of the time? Will the children spend equal time with both of you? Who will make the educational, medical, and legal decisions for the children? Ideally, divorcing parents are able to reach an agreement over child custody with the assistance of their divorce attorneys or divorce mediators.

When a divorcing couple is able to reach an agreement over child custody and visitation, the agreement is put into a court order as a part of the final divorce decree. If the couple cannot agree on child custody, a judge will have to step in and decide for them.

What Factors Does a Judge Consider?

When a divorcing couple has a dispute over child custody, the judge will consider a number of factors before rendering a decision. These factors include but are not limited to:

  • The age and health of both parents
  • Each parent’s income and assets
  • Any history of domestic violence (e.g. child abuse and spousal abuse)
  • Any history of drug or alcohol abuse
  • Any criminal record history
  • Who has been caring for the children predominantly
  • If either parent has been a stay-at-home parent
  • The children’s desires, especially if they are old enough to communicate them
  • The children’s ties to their school, friends, family, and community
  • Each parent’s willingness to encourage frequent and ongoing contact between the child and the other parent
  • The demands of each parent’s job

When a judge has to decide on child custody, he or she strives to make a decision that is in the best interests of the children, considering the totality of the circumstances. For example, a father may be richer than a mother. Perhaps the father earns six figures and lives in a nice 6 bedroom home in a gated community while the mother is living in a two-bedroom condo and bringing in a modest teacher’s salary.

Just because the father can buy the children “more things,” it doesn’t mean he’ll be the one to get custody of the children. Since the mother has been caring for the children a lot more than her husband, she would likely be the one to have the children more often, especially because the father travels frequently for his job.

On the other hand, if the mother was recently arrested for DUI, lost her teaching job because of it, and had a habit of drunk driving, the father would probably get custody of the children. At least until she was able to kick her substance abuse habit and become financially independent. The courts want to ensure children are safe and protected, even if it means from their parents’ destructive behaviors.

Child Custody for Unmarried Parents

As far as unmarried parents are concerned, the courts cannot make orders for child custody or child support until paternity is established. Until paternity is established, a father has no legal rights or responsibilities towards his child, and this includes the right to child custody and visitation, or the legal obligation to pay child support.

Establishing paternity means to establish who a child’s legal father is. Paternity can be established through a voluntary Acknowledgement of Paternity, which is usually signed by both parents at the hospital after the child is born, or by a court order.

If a mother is not sure of who the father is, or if a presumed father is not 100% sure that he is a child’s father, the voluntary Acknowledgement of Paternity should not be signed. Instead, the family court should order a DNA test to confirm paternity.

Once paternity is confirmed through a DNA test, the father’s name can be placed on the child’s birth certificate and the court can make orders for child custody and child support.

It’s important to note that after paternity is established, a father has every right to ask for primary physical custody of his child, especially if the mother cannot properly care for the child due to a history of substance abuse, violence, mental illness, or criminal behavior.

Guardianship in Los Angeles

Sometimes, both parents are incapable or unable to properly care for a child. This can happen for various reasons. Perhaps both parents are in jail, or perhaps one parent has abandoned the child and the other parent is addicted to illegal drugs.

Perhaps one parent is disabled and the other is physically abusive to the child – there are many reasons why someone other than the child’s biological parents is better suited to care for a child. In these cases, a guardianship case may be opened in court.

What is guardianship? It’s when the court orders someone, who is not the child’s parent, to have custody of a child or manage a child’s property, or both. Often, it’s a grandparent, an aunt or uncle, an adult sibling, or even a close family friend who petitions for guardianship of a child.

If Child Protective Services (CPS) is involved in a child’s case due to neglect, physical abuse, or sexual abuse, the person applying for guardianship may need to go to juvenile court. If you are in this situation, we encourage you to contact our firm to receive legal advice from one of our experienced child custody attorneys.

Los Angeles Child Custody Lawyers

If you are dealing with a child custody issue that is tied to a divorce case, a paternity case, a guardianship case, or a post-judgement modification (post-divorce case), you are encouraged to speak with a Los Angeles child custody attorney from our firm.

Child custody is important; you want to ensure that your legal rights are fully protected from the outset. We have the knowledge and experience you need to navigate the legal process – give us a call today.

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