Your Top Child Custody Questions Answered

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 will have 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 cases. Instead, 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 child custody.

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.

Suggested Reading: 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.

Related: Establishing a Parenting Plan