8 Child Custody FAQs - California

Bare some frequently asked questions and answers about child custody in California. The answers are meant to help you gain a basic understanding of how child custody works in California, but keep in mind that the details of each case differ. The factors in your particular situation may be different than somebody else’s, so the potential outcomes are fact-specific as is typical in child custody cases.

For more information about California’s child custody laws, we invite you to contact our firm to set up a free initial consultation with a child custody attorney. In the meantime, read on to get some valuable information on California’s child custody laws.

1. Can parents decide on child custody?

If the parents are on friendly terms and they can come up with a child custody agreement, they can usually come up with their own arrangement, but a judge will have to look it over before it is made into an official court order.

2. What if we can’t agree on custody?

If the parents cannot agree on a child custody arrangement, the judge will have to decide for them based on the best interests of the child doctrine. In this situation, the judge will consider a number of factors, such as the parents’ wishes, the child’s wishes, each parent’s financial ability to support their child, any history of domestic violence, etc.

3. Can a parent’s mental illness impact child custody?

It is possible, but it’s not absolute. If a parent has a severe mental illness that affects their ability to take care of their children, it can present a problem. On the other hand, if the parent is receiving treatment and under the care of a doctor, and the mental illness is not affecting their parenting abilities, it may not be an issue at all.

4. At what age can a child choose which parent to live with?

It is a common misconception that once children reach the magic age of 12, 13, or 14, that they can choose which parent to live with, but this just isn’t the case. Only a judge has the power to make custody decisions. However, judges are interested in hearing about children’s preferences, even if they are younger than 12-years-old.

Judges will definitely give more weight to the wishes of a mature child, or an older child, but at the same time judges are aware that children are easily manipulated by adults, so they must evaluate the whole situation, not just the child’s wishes, before making a decision about custody.

5. Is it okay to move out if I want to fight for custody?

You may feel like living under the same roof of your spouse has become unbearable, but if you want to fight for custody and you foresee a child custody battle, you should NOT move out of the family home until you: 1) seek an attorney’s advice, and 2) have secured temporary child custody orders in place before you even think of packing your bags.

Why? Because, if you’re arguing that you’re the “better” parent, moving out sends a powerful message to the court that your spouse is suitable by your standards to care for your children most of the time. Plus, once you have a status quo established, it can be difficult to change it.

6. Can a parent lose custody because of an affair?

Unless the parent did something extremely neglectful, like leave their seven-year-old home alone so they could go out with their paramour, this is highly unlikely. In most California divorce cases, cheating will not usually impact child custody unless it directly affected the children’s safety, physical or emotional well-being.

7. Can I ask for joint custody?

The first place to start is to run it by your spouse. If he or she is on board, you can create a Parenting Plan that involves a joint custody arrangement. If your spouse is fighting you on this, you can certainly ask the court for joint custody, even if you’re a father or have spent less time raising the kids.

As a general rule, the courts lean toward joint custody arrangements because they benefit children the most. This arrangement works best when parents can live close to each other so school pick-ups and drop-offs are convenient.

Note: If joint custody is ordered, it does not necessarily mean that no child support will be paid. Typically, the parent who earns more still may have to pay some child support to the lower-earning parent. They may also have to pay for health insurance and a portion of the job-related childcare expenses.

8. What if a parent is abusing a child?

If a parent has been convicted of domestic violence, it can definitely impact child custody. An abusive parent may be ordered to move out of the family home, pay child support, and only see their children during supervised visits. If the abuse was sexual, or if the abuse was severe, the abusive parent could lose their parental rights.

However, not all abusive parents lose their parental rights. Sometimes, they are awarded unsupervised parenting time after they follow the court’s orders; for example, they complete a one-year batterer’s intervention program, they follow the conditions in their domestic violence restraining order, they follow the terms of their probation or parole, and they complete substance abuse classes (if court-ordered).

Click here to learn more about domestic violence and child custody.