There are several essential things to know if you’re engaged in a child custody action in California.
- What are the Types of Child Custody in California?
- Determining Child Custody in California
- What is California’s Best Interests of the Children Standard?
- What to Know About Parenting Plans
- How Do I Modify a California Custody or Visitation Order?
- California Child Custody FAQs
What are the Types of Child Custody in California?
California child custody laws require that custody orders ensure children have frequent and continuing contact with both parents. Parents share the rights and responsibilities of raising the child except when an order is inconsistent with the child’s best interest.
California courts recognize several types of child custody.
Custody is divided into two main categories. Physical custody is where the child lives for the majority of the time. Legal custody means that one or both parents share the rights and responsibilities associated with decisions regarding the child’s upbringing.
Physical and legal custody are further delineated in the following ways.
Sole Custody. Sole physical custody occurs when one parent retains the exclusive, primary right to have the child live with them. Sole legal custody gives one parent the right to make major decisions about raising a child.
However, the parent who obtained sole legal custody doesn’t get to make all of the decisions at all times. That is because the parent with physical visitation rights but not legal rights still has supervisory responsibilities while the child is in their control.
Joint Custody. This is the preferred arrangement in California. Joint custody means that both parents will play an active role in raising a child. When one parent is the custodial parent, the child lives with them most of the time, but the other parent has liberal visitation privileges with the non-custodial parent.
A joint legal custody order means both parents decide about health, religion, school, extracurricular activities, and other similar significant concerns. In some cases, one parent will decide some things, and the other will decide on other legal issues.
California child custody laws do not require a 50-50 parenting time for there to be joint physical custody. So long as each parent has significant periods with the children, joint physical custody is appropriate.
Courts decide each case differently, but joint physical custody generally means that visitation takes place at least 35% of the time and typically 40% or more.
Split Custody. Split custody means that in families with more than one child, each parent will take custody of one or more children. California courts are reluctant to do this because they do not want to separate children whenever possible, favoring the preservation of siblings’ relationships and bonds with each other. Generally, a parent must provide significant evidence to separate siblings in child custody cases.
Shared Parenting. In this arrangement, children usually spend equal amounts of custody and visitation time with each parent, and the parents share legal and physical custody. The studies seem to indicate that these types of child custody arrangements benefit the children the most assuming both parents are responsible adults.
Under California law, a judge cannot give a preference to one parent or the other based on gender. Fathers and mothers both have equal rights in this regard.
Also, a judge cannot arbitrarily give sole custody to a parent and must base their decisions on the facts and law. One of the most common times when sole custody is awarded is when domestic violence or abuse is present in the family.
Determining Child Custody in California
Divorcing couples often tackle custody and visitation issues as soon as they separate. Courts generally honor both long-term and short-term custody arrangements agreed to by parents as long as the child’s best interests are protected.
Procedures used to resolve custody issues when couples don’t agree can include
Temporary Hearings. The family court holds a temporary hearing shortly after the initial papers are filed. If custody is contested, the court will issue an order deciding custody that will be in effect until the court enters its final divorce decree.
Custody and Mandatory Mediation. Mediation is a form of alternative dispute resolution in which divorcing couples work with a specially trained neutral third party to resolve some or all of their disagreements.
Custody Evaluations. Most courts will order a custody evaluation before trial if the parents can’t reach a custody agreement. The custody evaluation is made by an outside expert on whose assistance the court will rely in ordering a child custody arrangement that is in the child’s best interests. Most child custody evaluators are forensic psychologists who will conduct interviews with parents, children, and other family members and review pertinent information and evidence to help reach the best recommendation.
Custody Trials. Most courts decide contested custody cases based on determining what arrangement is in the child’s best interests. There are several factors a judge must consider as part of this process. These can include:
- The child’s relationship with each parent. Bonding is a function of a child’s age, maturity, temperament, and a parent’s personality and stability.
- Each parent’s willingness to cooperate with the other parent.
- Communication between parents. The court will consider if one parent is frustrating, preventing communication, or refusing to engage in co-parenting.
- The need for continuity and stability in custody arrangements and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker.
- Previous involvement in raising the child. Active involvement is always a plus.
- The child and each parent’s mental, emotional, and physical health of the child and each parent.
- Does a parent have a history of domestic abuse, substance abuse, or other behavioral issues that could threaten a child? A parent with a history of domestic violence or child abuse will face an uphill battle in seeking joint legal and joint physical custody.
- The custody evaluator’s report
- Abandonment which includes not maintaining the obligation to financially support the children
- Criminal convictions and specifically child abuse crimes, including but not limited to those that require registration as a sex offender.
- Threatened or actual abduction of children to keep them from the other parent.
- Does a parent who lacks strong ties to California have strong familial, emotional or cultural ties to another state or country?
- Does the parent have financial reasons to stay in California? Courts typically will look at the parent’s employment, both the nature and extent of it, and whether the parent can work from anywhere.
Race, religion, sexual orientation, handicap, and a parent’s financial status are irrelevant to child custody decisions.
Read More: California Alimony and Spousal Support
What is California’s Best Interests of the Children Standard?
California’s Family Code clarifies that custody and visitation determinations are made in the child’s best interest (Cal. Fam. §§ 3011, 3020, 3040, 3041). The other factors mentioned above are secondary to the overall best interest determination. For this reason, judges have considerable leeway in looking at all circumstances that have a relevant bearing on the child’s interests.
This court discretion when assessing the child’s best interest makes child custody decisions difficult to appeal successfully. When an appellate court looks at a judge’s decision on what facts they gave less or more consideration to, they generally have to find that the judge abused their discretion when evaluating the facts.
What to Know About Parenting Plans
Parenting plans are detailed instructions that spell out each child’s physical and legal custody for each child. The more detailed the plan, the less chance there is for disagreements and confusion later. Because this is an important legal document, it’s probably a good idea to retain an experienced attorney familiar with California child custody laws to help draft a plan.
Parents can also create their agreement or use a mediator, but it must follow California child custody laws. The court must approve all agreements.
Each plan is unique, but at a minimum, it’s a good idea to include the following:
- Physical custody, including a detailed visitation schedule for the noncustodial parent.
- Legal custody, including which parent is responsible for specific items if these decisions are shared
- Child support payment amounts and recourse if a parent falls behind. You cannot withhold visitation when child support is in arrears.
- The physical process of exchanging children, including when, where, and time of day
- Transporting children for visitation and other necessary movements
- Access to records and information
- Adjustments when the children reach certain ages
- Holiday schedules and school break schedules
- Vacation and travel approval and advance notifications
- How a child will communicate with both parents
- Communication for co-parents, such as having a preferred method (calls, emails, texts).
- Contact with other family members and friends (or not)
- How are various expenses handled? These could be related to medical costs, tuition, school activities, hobbies, and recreational activities.
- Children’s use of technology and online activities
- Handling special needs for the children as they arise
- How to address child discipline and mental health issues
- Guidelines when a new partner is involved
- Grooming and dress guidelines (extreme haircuts, make-up, etc.)
- Drinking or drug use in the presence of the children
In some difficult and complex child custody cases, courts can grant a specific visitation order detailing the days and times each parent spends with a child to avoid ongoing litigation as to what is “reasonable” visitation.
What is supervised visitation?
Supervised visitation occurs when a third party must supervise the non-custodial parent’s visitation. A third party may be a relative or a friend or possibly assigned by the courts. It may be ordered where a parent poses potential harm or cannot properly care for the child. A third party may be a relative or a friend or possibly assigned by the courts.
In rare cases, courts may find that it’s in the child’s best interest not to visit a parent at all.
How Do I Modify a California Custody or Visitation Order?
After custody and visitation orders have been issued, they may be changed later by the court or by parental agreement.
If the parents reached their agreement through mediation, they might have to return to mediation to make any modifications. If a court order establishes custody, the parents must typically petition the court to make any modifications.
To support a modification request, the parent seeking the modification must show a substantial change in circumstances. This could be due to a change in either parent’s health, a job change necessitating a move to a distant locale, military deployment, changes in school or other routine activities, or if the current custody arrangement endangers the child.
When the petition request is due to the relocation of one parent to a distant locale, the court normally looks closely at why the parent is leaving the immediate locale. Some people move for better jobs, but other parents may move to get away from the other for no good reason.
California Child Custody FAQs
How does California deal with a child’s preference?
Since California Family Code section 3042 was enacted in January 2012, a child’s preference has become a more significant factor than ever before.
California child custody laws give the family court discretion after evaluating a child’s maturity, parental influence, conditioning, and alienation when deciding how much a child’s preference should matter.
How does military service impact California child custody orders?
A judge cannot modify custody or visitation solely on a parent’s absence or relocation or failure to comply with the order that resulted from active military service and deployment outside California.
The key word there is “solely.” Just because the father was gone does not mean he automatically loses joint custody and equal parenting time. If there are other reasons that affect a child’s best interest and the issue of custody and parenting time, those should be considered as well.
If custody and visitation orders are modified and approved before the parent leaves on a military deployment, mobilization, or temporary duty, the order is usually temporary.
What is an ex parte child custody order?
When a child is in immediate danger or a parent threatens to abuse a child, courts can grant an ex parte emergency child custody request.
Emergency child custody requests are appropriate where there is a threat of child abduction,
an actual abduction, or other circumstances where the child is facing imminent risk of harm. Recent sexual abuse, physical abuse, domestic violence, or a demonstrated and continuing pattern of these behaviors is appropriate for emergency relief.
When the need for the order does not involve imminent risk of harm to the child but there is still an emergency that involves the need for a faster hearing, the family law court does have the power to shorten the time to set a hearing.
Can stepparents and grandparents get visitation?
Under Family Code § 3101, the court may grant reasonable visitation to a stepparent or grandparents if it is in the child’s best interest.