Child Custody – California Family Code 3011
When two people decide that a divorce is the best option, separating their lives can be stressful, no matter how rational the decision. When children are involved, the decision to divorce becomes even more emotional. In fact, child custody is one of the most emotional aspects of family law.
Any assets lost in a divorce can ultimately be replaced. If one spouse retains a vehicle, the other spouse can purchase a new one. If one spouse maintains the primary residence, the other spouse will find somewhere else to live. What cannot be replaced is lost time with children. In some instances, hurt feelings cannot be repaired and words cannot be taken back once uttered.
When parents are deciding to permanently and legally separate, they need to consult with an experienced family law attorney. At Milligan, Beswick, Levine & Knox, we have many years of experience and extensive knowledge of California’s child custody laws. We have successfully handled thousands of cases in San Bernardino and the surrounding area. We are here to put our experience and knowledge to work for you. Speak with a child custody attorney at Milligan, Beswick, Levine & Knox to find out how we can assist you during this stressful time.
Understanding Child Custody in California
Child custody is not a simple matter. There are many details that enter the decision-making process and both parental and child’s rights are taken into consideration. Each child custody case is unique, whether it involves separation, divorce, child abuse or domestic violence. When parents have an experienced, reputable attorney on their side, they can make arrangements that are in the best interests of everyone involved.
Child custody is divided into two main categories in California: legal custody and physical custody. When a parent is granted legal custody of a child, that parent has the right to make legal decisions for the minor child. These decisions include those that involve the child’s schooling and health care. Physical custody determines where the child will reside. When a parent is granted physical custody of a child, the court has determined that the parent’s residence will be the primary home of the child. That is to say that the child will reside with that parent most of the time, and visit the other according to a predetermined schedule.
A parent may be granted both legal and physical custody of a child. In other cases, one parent may be granted legal custody while the other is granted physical custody. Again, each child custody case is unique, and the outcome of a case should not be assumed or taken for granted.
A Brief Explanation of Parental Rights
One of the questions that we are most frequently asked is whether or not one parent can take the other’s rights to the child away. In cases that do not involve abuse or domestic violence, it is extremely unusual for a parent to have rights to their child involuntarily removed.
In cases where a judge removes parental rights, it is typically because the parent has not been in contact with their child for over a year. Even in these cases, parental rights can only be removed if another person, such as a new spouse, has a desire to step in and take responsibility. Parental rights are not only taken away, they are transferred to another person, as is the case in adoption. A new spouse may not adopt a child, however, without giving the parent a chance to contest that process.
If one parent wants to terminate the parental rights of the other parent, the parent who may potentially lose rights must be served with a Notice of Alleged Paternity. The parent then has 30 days to contest the notice. If the parent has not had contact with their child in more than a year and they do not contest the Notice of Alleged Paternity, their rights may be taken by a judge.
Types of Custody in California
1. Sole Custody
In the Family Code of California, there is a difference between sole legal and sole physical custody of a child. When a parent is granted sole legal custody, they are given the exclusive rights to make decisions for the child regarding health care, education and general welfare. One parent may be granted sole physical custody. When this is the case, the other parent may be granted visitation rights by the presiding judge.
Many people assume that a mother will automatically be granted sole custody of a minor child. This is not always the case. It is interesting to note that it was only in the middle of the nineteenth century that it became widely acceptable to award primary custody to the mother. Prior to this, custody of minor children was normally awarded to the father. The tide is again starting to shift, and mothers are no longer assumed to always be the appropriate person to have custody. Judges are now expected to consider the interests of the child and not the gender of the parent.
In some cases, parents may consider determining custody issues before court with the assistance of their respective attorneys. If the custody plan is realistic and serves the interests of the child, there is no reason for a judge to make alternate determinations.
When deciding the “best interests” of the child, judges take into account factors outlined in CA Family Code 3011. These include:
- The health and safety of the minor child
- Any history of familial abuse committed by the person seeking custody against a spouse, cohabitant, partner, child, etc.
- The type and frequency of contact between the parents and the child
- Any past or current use of prescription drugs, alcohol or controlled substances by both parents.
A judge may not make a custody decision based solely upon:
- The gender of either parent
- Immigration status of either parent
- The outcome of a drug or alcohol test
2. Joint Custody
When parents are awarded joint custody, both retain legal and physical rights to the child. Those rights are shared equally. Under California Family Law, joint custody is legally defined as when “both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.”
Rather than a child living with one parent and visiting the other, as in sole custody situations, each parent participating in a joint custody agreement are permitted “significant periods” of custody. The terms of the custody agreement may be different in each situation, but in every, each parents has as close to an equal amount of time with the child as possible.
In some instances, a child may divide their time between both parents’ homes equally during the week. In other instances, such as when a parent travels for work or has other obligations, the child may live primarily with one parent but spend breaks from school with the other. No matter where the child resides, both parents have an equal say when it comes to the child’s legal rights and needs.
Other Types of Custody
There are two lesser-known or utilized types of custody in the state of California. These are split custody and bird’s nest custody. In split custody, there is more than one child and each parent takes custody of a different child. In bird’s nesting, the child remains in the family home, with each parent taking turns moving in and out.
The Child Custody Process
In some divorce cases that involve questions of custody, both parents will sit down with their attorneys and come up with a custody agreement of their own. This is often the best way to determine how custody will be shared, as the parents know their children best. In other divorce cases, the parents do not agree on how custody will be handled, the court will step in and make the decision. This can be done in a number of ways.
1. Temporary Hearing
Once divorce papers are filed, the parents or their attorneys will appear in family court for a temporary hearing. The court will issue an order that dictates all legal aspects of the marriage until the final divorce decree is granted. When issues of child custody are not agreed upon, the court will dictate temporary arrangements. In most cases, the child will reside in the family home with whichever parent retains residence. If there is evidence that this is not the most suitable situation for the child, other arrangements will be outlined. The parent who is granted temporary custody is not necessarily the parent who will be awarded custody after the divorce is granted.
2. Mandatory Mediation
Like many other states in the country, California requires that divorcing parties enter into mediation. This alternative dispute resolution process helps those entering into a divorce to solve disagreements involving a number of issues. Parents of minor children may decide to utilize mediation as a way to solve a custody dispute, while leaving other issues up to a judge to decide. Parties may decide to include a provision in their divorce papers that dictate they must return to the mediation process to work out custody issues that arise once the divorce is final.
3. Custody Evaluation
A custody evaluation may occur when parents are unable to come to an agreement through other processes and decide to move ahead to trial. The court will appoint a professional to conduct the evaluation or evaluations. A custody evaluation will include conversations with parents, the children, teachers and other who have direct knowledge of the relationship between the parents and minor children. In some cases, the parents may be ordered to undergo psychological evaluations before custody recommendations are made. It can take several weeks for a custody evaluation to be completed and paperwork submitted to the court. Outside of cases of emergency, the court will not make a custody determination until the evaluation has been completed.
4. Trial
The last step in a child custody case is the trial itself. It is during the trial that evaluation reports and testimony may be presented. The judge will listen to the facts of the case and make a decision of custody with regards to the best interests of the child.
Child Custody Agreements Can Be Modified
As with anything in life, child custody agreements may work for the time being, but may not be beneficial to all parties in the future. When parents want to modify the arrangements of the original custody agreement, they may do so with the assistance of their attorneys. Typically, a modification request will not be heard if it is within two years of the original court order. When a modification request so closely follows the original order, it will only be heard in cases of emergency. This is why it is so important to work out any disagreements or issues before the order is handed down by the judge, and why family courts encourage parents to reach a custody agreement before appearing in court.
Child custody is not a simple process. In some instances, a divorce is amicable and parents can agree on custody issues with minimal assistance from their attorneys. In other cases, custody of children becomes a battle in court. No matter the status of a divorce, if child custody is in question, parents are encouraged to consult with an attorney experienced in family law.
If you are seeking a divorce in Redlands and have minor children, reach out to the team at Milligan, Beswick, Levine & Knox. We have the experience and knowledge necessary to answer the questions that you have and provide you with expert representation. Let us assist you as you work to move on with your new life in a way that is beneficial to all involved. We are happy to help you schedule a free initial consultation.
