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Child Custody

Los Angeles Child Custody Attorney

What Are the Differences Between Joint & Sole Custody?

When two parents cannot come to an agreement about child custody on their own, it will be up to the courts to decide the terms of the child custody arrangement. A number of things will be considered by the court when determining child custody, and the judge will always seek to rule in the best interests of the child.

Types of Custody Orders

Child custody in California refers to the legal and physical rights and responsibilities that parents have concerning their children after a divorce or separation. In the state of California, child custody is determined based on the best interests of the child. The court aims to ensure that the child's health, safety, and welfare are prioritized in any custody decision.

There are two main types of child custody in California:

  • Legal Custody: This involves the right to make decisions about the child's upbringing, including matters related to education, healthcare, and religious upbringing. Legal custody can be joint, where both parents share decision-making responsibilities, or sole, where one parent has the authority to make decisions without consulting the other.
  • Physical Custody: This pertains to where the child will live on a day-to-day basis. Physical custody can be joint, with the child spending significant time with both parents, or sole, where the child primarily resides with one parent, and the other parent may have visitation rights.

Sole custody orders:

  • Exclusive Custody: This is a broad term that may encompass both physical and legal custody. It means that one parent has the primary responsibility for the child, and the other parent may have limited or no rights regarding the child's upbringing.
  • Sole Physical Custody: In this arrangement, one parent is granted the exclusive right to have the child live with them, while the other parent may have visitation rights. The parent with sole physical custody is the custodial parent, and the other is the noncustodial parent.
  • Sole Legal Custody: This type of custody grants one parent the exclusive right to make decisions about the child's upbringing, such as education, healthcare, and religion. The noncustodial parent may still have visitation rights.

Joint custody orders:

  • Pure Joint Custody: This is a less common form of custody where both parents share equal responsibility for both the physical and legal well-being of the child. The child spends an equal amount of time with each parent, and both parents have an equal say in decision-making.
  • Joint Legal Custody: In joint legal custody, both parents share the responsibility for making decisions about the child's upbringing, even if the child lives primarily with one parent. It does not necessarily mean equal time-sharing of physical custody.
  • Joint Physical Custody: In this arrangement, the child spends a significant amount of time living with both parents. Joint physical custody does not necessarily mean an equal 50/50 split, but rather a substantial amount of time with each parent.
  • Divided or “Split” Custody: This arrangement involves dividing siblings between parents. For example, one parent may have sole physical and legal custody of one child, while the other parent has sole physical and legal custody of another child. This arrangement is generally avoided unless it is in the best interests of all the children involved.

How Does the Court Determine Child Custody?

In California, when determining child custody, the court prioritizes the best interests of the child. The court considers a variety of factors to make decisions that will promote the child's health, safety, and overall well-being.

The common considerations include:

  • Health and Safety of the Child: The court assesses each parent's ability to provide a safe and stable environment for the child. This includes factors such as the cleanliness and safety of the home, any history of abuse or neglect, and the ability to meet the child's basic needs.
  • Emotional Bond with Each Parent: The court looks at the emotional ties and bonds between each parent and the child. Factors such as the child's age, attachment to each parent, and the ability of each parent to foster a positive relationship with the child are considered.
  • Stability and Continuity: The court considers the importance of maintaining stability and continuity in the child's life. This includes the child's current living situation, school, and community ties. Disrupting established routines may be weighed against the potential benefits of a custody arrangement.
  • Willingness to Promote a Healthy Relationship with the Other Parent: The court looks at each parent's willingness and ability to facilitate and encourage a positive relationship between the child and the other parent. This involves supporting the child's relationship with both parents, unless there are circumstances that indicate it would not be in the child's best interests.
  • Each Parent's Capacity to Provide for the Child's Needs: The court considers the financial and emotional ability of each parent to provide for the child's physical, educational, and emotional needs. This includes factors such as employment stability, income, and the ability to create a nurturing environment.
  • History of Substance Abuse or Domestic Violence: Any history of substance abuse, domestic violence, or other criminal activities may be considered by the court. The safety of the child is a paramount concern, and a history of violence or substance abuse can significantly impact custody decisions.
  • The Child's Wishes (if age-appropriate): In some cases, the court may consider the child's preferences, especially if the child is of sufficient age and maturity to express their own desires. The weight given to the child's preferences depends on the circumstances and the child's age.

When weighing the possible options, take into account the phase of life the children are currently in. Consider their age, their personality, what they like to do and even their friends. It may be important also to consider the child’s personal input. Although, some children may feel uncomfortable in sharing their opinion on the matter, so it is not necessary that they give a preference.

Even so, it is good for them to know that they can have a say in the matter. During this time, it is important to remind the children of how much they are loved, and to let them know how important they are even in the process of divorce. If the parents cannot agree, then a judge will decide.

Frequently Asked Questions About Child Custody

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.

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.

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.

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.

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.

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.

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.

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).

Get in Touch with Claery & Hammond, LLP Today

We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and our team can provide you with the caring and outstanding legal counsel you need and deserve. When children are involved in a divorce or separation, custody disputes frequently arise.

If you are having problems determining a child custody arrangement with the other parent, you will need to hire a Los Angeles child custody lawyer to handle the situation. Often when two parents split up, child custody must be decided and the arrangement will have to be adhered to by both parties, otherwise legal action may become necessary.

If you are a parent who is going through a divorce and needs help getting custody of your children, or are trying to take action against the other parent because they are disregarding previous custody arrangements, a child custody attorney in Los Angeles at Claery & Hammond, LLP can help you. Founding partner Lance Claery and attorney Eli Hammond are experienced in child custody laws and family law, and frequently handle situations involving custody disputes.

Discuss your rights under California's child custody laws by contacting our Los Angeles child custody attorneys as soon as possible. You can reach us by phone at (310) 817-6904.

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