Deciding child custody is an emotional experience for a couple that is undergoing divorce or separation. While it may be easy for you to regain the assets that you may lose or to provide child support, getting back the time you lost with your child is almost impossible. You will need to have the help of a divorce lawyer that is experienced in child custody issues to help you understand child custody regulations, including visitation rights in case you won’t be given a significant amount of child custody. The Los Angeles Divorce Lawyer has prepared this article to give you all the information you need to know about child custody and related issues such as child visitation, parenting plan, how child custody is determined, and much more.
Understanding Child Custody Laws
Child custody can either be physical or legal. Physical child custody mostly entails which parent lives with the child. In other cases, parents get to share physical custody of the child equally (50-50).
Legal custody is the right given to a parent, allowing him or her to make significant decisions on a child’s behalf. Examples of the decisions made include where the child lives, where the child will school, which doctor will attend to him/her when sick etc. This kind of custody can also be shared between the parents. However, the parents don’t have to jointly agree on each decision.
If you are denied custody, you will be granted visitation rights to some extent except if you abused the child or if your presence and influence are reasonably seen as dangerous to the child (Family Code Section 3020 & 3030). In cases where one of the parents is incapable of assuming custody, refuses to assume custody or abandons the child, the other parent will have sole custody.
Plans for parenting time for the non-custodial parent vary greatly depending on the case. Such plans involve the quantity and kind of visitation the parent will provide. Also, note that the law puts into account the grandparents’ rights as far as visitation is concerned. This is what is referred to as grand-parenting time.
Generally, when deciding child custody, parental and the child’s rights take a center stage. The state also shows concern of the welfare of the children in question, which means the number of people involved in a child custody case may increase. We may also have institutions that have statutory responsibility intervening the case. In some cases, depending on how old the child is, the court appoints a guardian ad litem to independently represent the minor. Child representation enables a child to express his/her custodial preferences. Because children depend on parents, the court may resort to instant protective measures that may compromise the due process of exercising parental rights.
The state of California, just like most of the states, implemented the Uniform Child Custody Jurisdiction & Enforcement Act which means that in some cases, it is possible for parents to have joint custody. The courts also consider what the child has to say when making decisions pertaining to custody before complying with what the law dictates. This also implies that the state of California will join hands with other states and foreign nations in international or interstate cases of child custody.
What Factors Determine Who Assumes the Custody of a Child?
We have several factors a judge looks at when deciding who should have physical or legal custody. If you get physical custody, you will have to agree on a parenting plan with your ex-spouse. In some cases, the parenting plan is enforced by the judge and both parents have to abide by it. A parenting plan is the allocation and scheduling of parenting time. The plan can be adjusted as time goes by; but it is recommended that from the start, you come up with a good, practical plan which can last a long time.
California judges follow the basic principle of ‘best interests of the child’ in deciding which of the parents is granted custody and which one will have visitation rights. Note that you have to abide by any decision the court makes even if it is biased or is based on untruthful or inadequate information. That’s why you need the services of a competent attorney who will fight for what is in your child’s best interest and what upholds your rights as a parent. Your attorney should provide complete and unbiased evidence to the court that will guarantee a positive outcome.
Here are some of the factors the court considers in deciding child custody;
- The child’s/children’s age. If the child is very young, the court will see it fit if she/he stays with his/her mother
- The child’s health condition. If the child is ill or disabled, the parent that is granted physical custody must be capable of taking care of the child
- The child’s safety
- What emotional bonds are there or aren’t there between each parent and the child
- If there has been any record of abuse by any of the parent
- If any of the parents use controlled substances, prescription drugs or alcohol
- Where the child’s current home, relatives, and school is located plus other community bonds
- Physical, emotional, and financial ability of both parents to provide the child with various basic necessities
- The frequency and nature of the contact that exists between the parents and the child
- The child’s personal wishes
Child custody in California is not automatically granted to the mother, or to the parent of similar gender, or to the one with lower or higher earnings. In addition, the law worries less about sexual orientation or religious perspectives as determining factors. While child custody has many determining factors, the child’s best interests are what the law centers on mostly, regardless of whether they are the best interests of either parent.
How Do You Come Up With a Parenting Plan?
You should, with the help of your attorney, be able to agree on the kind and quantity of child visitation rights with your ex-spouse after the judge decides on who is granted physical custody. Under these circumstances, we may have an arbitrator appointed by the court to take part in the negotiation process.
If you can agree on the parenting plan with your ex-spouse without any problem, then you both need to complete a certain form and sign it. You will then have your attorney review it and then present it to the judge presiding over your case who will sign it upon approval. The final step is submitting the plan to the superior clerk of the court.
If you have tense disagreements with your spouse such that you cannot successfully formulate the plan, the court is mandated to intervene and formulate one for you.
Coming up with a parenting plan should not be a problem if the disagreements between you and your spouse do not entail who gets custody of the child. This will be easier because what you will need to do is work out on the other features of the plan. Parenting plans differ greatly from one case to another. However, there are some basic elements that all of them must contain. They include;
- Where the child/children will live i.e. the child’s physical location or who gets physical custody of the child
- A schedule outlining the rights of visitation of the parent that is denied custody so that they also gets their parenting privileges
- Where the child/children will go on vacation and where they will spend birthdays, holidays, and other important days or times of their lives
- Who gets the child’s legal custody i.e., who will make important decisions on behalf of the child/children as they grow up
- A process describing how the parenting plan might be adjusted. This relates to an amendment function which is meant to eliminate the need of returning to court to get another parenting plan every time you make minor changes that could be necessary
- In what manner the child/children will be capable of having relations with members of the family, friends, and relatives apart from just their parents
Even after both of you successfully agree on the basic features of the plan, the plan has to be reviewed by the judge and approved for it to be legal. It is the preference of the court that parents decide on a parenting plan by themselves. The court only intervenes in extreme cases where the parents are incapable of agreeing and imposes one.
It is also worth noting that violating a parenting plan that is imposed by the court is a serious crime under California law. For instance, you could face legal punishments if you flaunt an agreement ordered by the court. Also, if one parent denies the other parent their stipulated visitation time, or if the parent that is granted visitation rights keeps bringing the child home late after visitations, the other parent is allowed by the law to file for a complaint and get the court to resolve the issue.
Custody by a Third Party
Sometimes, though in rare cases, the court might rule that the child’s staying with either parent will not be in his/her best interests. In such a situation, a relative or a family friend volunteers to take custody. The court then reviews the volunteer’s qualifications and makes a decision. More often, it is a grandparent who gets custody should anything of the sort happen, but someone else could still be granted custody as well. In case custody goes to a third person, it is most likely that the parents will be granted visitation rights. Both parents may be needed to pay for child support too.
Requests of Custody
Filing for a custody request results when you and your ex-spouse can’t agree on who should be with the child. This mostly happens during the process of divorce or legal separation as a result of domestic violence or due to a paternity argument. In some situations, a government agency or any agency advocating for child support may file the custody order.
You file for a custody request by filling out certain legal forms, having them reviewed and filing them. The court then sets a date to determine whether or not to consider the custody request. Your ex-spouse should be served with custody papers at minimum 16 days ahead of the court hearing.
The judge will approve by signing the custody order if his decision favors you. However, if the judge doesn’t sign the order, you cannot have legal custody nor will your parenting plan be legally enforceable.
Types of Visitation You Can Be Granted as per the Family Laws of California
Just like in granting custody, the law also puts first the child’s best interests when it comes to granting visitation rights. Except if there is a valid reason to decide otherwise, a judge will assume that it is in the child’s best interest for him/her to continue having a relationship with his/her mother and father. We have different kinds of visitation that a court may grant. In the event of joint physical custody (where you share physical custody equally with your ex-spouse), the rights to visitation alternate with assuming custody. However, this is a rare occurrence.
The following are the major types of visitation a judge may grant.
Here, if you are the non-custodial spouse, the judge will grant you visitation time. During this visitation, your ex-spouse, a professional from a child care agency or any other adult that can be trusted has to be present. The measure may be necessary as a way of showing concern for the safety of the child. In other cases, supervised visitation is temporary to give the child time to get comfortable around a parent he or she has not seen for quite some time and to get to know the parent.
This is the usual visitation. It happens when you are granted the right of spending parenting moments with your child in case you didn’t get physical custody. You should adhere to the visitation time as you agreed upon with your ex-spouse or as imposed by the court.
If you have committed acts of child neglect, child abuse or domestic violence, or if the court believes there is a reason that will compromise the wellbeing and safety of the child if you are granted custody, then, acting in the child’s best interests, the judge will deny you visitation rights.
Visitation in the current era isn’t always about physically being in a similar location as the child. Nowadays we have cases where the court can grant you virtual visitation rights. This means you get to talk to your child through the internet like Skype or other sites that allow communication through a webcam. You can use your desktop, laptop or smartphone to talk to your child.
Actual visitation is more beneficial to your child than simply communicating over the internet. But since you might be far away from the child may be due to work purposes, virtual visitation is better than if there was no contact whatsoever. In addition, virtual visitation may be a way of solving conflicting schedules of the parenting plan, for instance, the time where the child’s at home but you are at work or when the child’s in school and you are off work.
The Code of Conduct During Child Custody Proceedings
Maintain your child’s schedule. Don’t let the proceedings affect your child/children’s routine. If you have agreed on visitation time with your ex-spouse, make sure you come on time. If you won’t make it, give notice of rescheduling. If you act irresponsibly, the court may use it as a reason to side with your ex-spouse on significant legal matters.
Check on your actions and how they will impact on parenting. Actions like attempting to turn your child/children against your ex-partner or using your children as a means of conveying a message to your ex-spouse may affect the outcome of the case.
Care for your child/children as you have always done. Custody hearings can be hard on the children. That is why you should spare some time and address their concerns. Make them understand that it is not their fault for all that to happen.
Be civil in your dialogue when you are before the children. Your children do not have to know the details concerning the hearing. It is fine if you make them understand that you are divorcing with their mother/father but they should not know the financial or other details. It would be like exposing them to your fights.
Be careful of social media platforms. Using social media platforms can bring about legal hazards. Therefore, avoid using voice messages, emails or post pictures on social media that could give your ex-spouse the upper hand. Be professional when communicating with your ex-partner and avoid sharing any information that could incriminate you.
Always keep contact lines open because your ex-spouse has the right to communicate with the children. Ensure that they can regularly communicate.
If you have a child custody dispute in Los Angeles, you can contact the Los Angeles Divorce Lawyer firm. Our attorneys have the legal training and experience in California child custody and visitation laws and will help you to understand all the legal options you have. Contact us at 310-695-5212 and let us understand your case.