Legal family battles like divorce, marriage annulments, and separations can be emotionally and financially draining. When these situations are unavoidable, child custody battles set in. Basically, child custody is a parent’s control over a child after a parental agreement or court order. The parent without custody is given restrictions under which they can visit or see their child. Read on for more information on what you need to know about child custody as addressed by the San Diego Family Law Attorney.
Child Custody
Child custody, commonly known as legal guardianship, is the control over a child. It is either determined by an agreement between the parents or a decision by the court in case of divorce or legal separation. According to the state laws of California regarding child custody, issues on where the child should reside and who will make the decisions pertaining to essential matters in the lives of these children is made with the child’s best interests in mind.
How are Child Custody Decisions Made?
When you and your spouse decide to get a divorce or legal separation, you will be anxious about issues concerning custody and your parental rights. Every parent wants to be involved in the critical decisions of their child’s life; hence, custody arrangements affect not only the children but also the parents.
Like other aspects of divorce including child support, property divisions, and alimony payment, child custody, and visitation arrangements can be made by an agreement between the spouses. You may also involve a mediator if you can’t settle the issue with your spouse. Then after an agreement is reached, the court may approve this agreement and each spouse is bound to observe the agreement. This agreement is known as a parenting agreement.
What is a Parenting Agreement?
A parenting agreement, commonly known as custody agreement, is a written document that contains the parent’s final decisions on matters relating to child custody. Though such agreements vary from case to case, they should cover the major areas that affect the wellbeing of the children.
During the divorce proceedings, having a parenting plan will help you to save time and money. This because you will not have to undergo the process of mediating before deciding on who to take custody of the child. Still, it can be difficult for separated or divorced parents to contact each other or even come up with an agreement. Hence, seeking the services of a family law attorney can help you ease the burden of the process since you will not have to deal directly with your ex-spouse.
Some of the issues covered in a parental agreement include the physical custody of the children, visitation schedules, matters concerning legal custody, and the circumstances under which changes to the contract would be made. Even when the plans are local, the custody agreement has to be approved by a judge.
As long as both parents willingly signed the agreement and the issues stated to reflect the best interests of the children, the court will always approve the deal. According to the family laws of California, once the court passes a parenting plan, it becomes a legally binding order. Failure of either parent to follow the agreement could lead to serious legal problems.
In the case where parents are not in good terms and cannot come up with an agreement, they have to involve the court which helps make the decisions on their behalf.
Factors that Influence the Court’s Decision on Child Custody
Court cases involving child custody are complex, and their outcome is quite unpredictable. When the parents are unable to agree on who gets custody of the children using mediation channels, they result in seeking the court's involvement. Some of the primary factors that will determine the course of your child’s custody case include:
The Child's Personal Relationship with Both Parents
In a family set-up, the child is most likely to have different relationships with each parent. If your child is more comfortable around you, then this may influence the court's custody decision in your favor. Some parents are too busy with their professional life and do not have time for their children. In such case, the chances of getting awarded child’s custody are low.
Additionally, a parent’s criminal record could influence the ruling in child custody cases. The judge is likely to award custody of your minor children to your ex-spouse if you have a history of conviction, drug involvement, or child abuse. This is because the primary goal of awarding custody is to ensure that the child grows in a healthy and conducive environment, and parents with abusive records may not be able to enhance this objective and the general relationship with their children.
The Parent’s physical and mental health
Before the court makes its final decision, the judge puts into consideration the mental stability of each parent. You will find it harder to acquire custody if you have a history of poor anger management. Additionally, parents should have the strength to take care of the children; thus, parents who have severe or terminal illnesses have a lower chance of getting child custody.
Other than the health of the parents, the judge will consider the health of other individuals who will be living with the child including step-parents and siblings.
The child’s preference
For children who are 14 years or older, the judge will appoint a custody evaluator to speak to the child and find out their opinion on where they would want to live. Although it is not known how exactly the child’s view may affect the outcome of the custody case, their opinion will be put into an account before the court makes a decision.
Considering a child’s view of custody matters ensure they will be comfortable wherever the court places them.
Parents Financial Capabilities
Although it is not the main factor that influences a judge’s decision, the ability to provide for the needs of the child – including good accommodations and decent education – can be an added advantage for you during a custody case. However, you may have a higher financial capability, but your physical parenting capabilities are questionable. In this case, the judge may decide to give custody to the other parent and order you to pay monthly child support.
Parents’ wishes
In some cases, both parents may agree to ask joint custody to ensure that both of them make crucial decisions regarding the child's welfare. Some parents want full physical and legal custody of their children. If such a parent can show proof that the ex-spouse is not a good influence on the child, the judge could consider this when making the custody decision.
Work commitments of the parents
The ability to provide for the financial needs of your children is of great importance; but as a parent, you are required to invest your time to cater for the child’s emotional and psychological needs. Putting this into account, the judge will evaluate the amount of time you can spare to spend with your children.
Stay-home parents have a better chance of getting custody compared to spouses who have very demanding careers and are rarely at home.
The child’s age
Very young children tend to have deeper connections with their mothers, and a separation from their mothers could be traumatizing. Therefore, judges tend to award custody to mothers and allow frequent visitations by the children’s fathers.
For older children, particularly between the ages of 12 and 17 years, the judge encourages flexibility in parenting techniques and rights. This is because these teenagers want to be involved in the decisions that concern them. For this group of children, the judge is likely to award joint custody, putting into consideration the child’s opinion.
How Can I Improve My Chances of Winning a Child Custody Battle?
When all other factors are kept constant, the way you present yourself in court for the child custody case could have a significant influence on the judge’s decision to award custody. Showing your willingness to put the differences between you and the other parent aside to work together for the wellbeing of your child could be a great strategy.
Even if you don’t get along with your ex, you will need to show that your child is the priority in a family court. In a custody battle, you should avoid focusing too much on the negative things said about you. Instead, you should strive to present yourself as a loving and responsible parent.
When you are seeking for sole custody of your child, you should ensure that you prepare documents and evidence which show the incompetence of the other parent. All allegations you may have against them should be backed up by proof. Any false or unproven information could be manipulated to your disadvantage.
Having prior knowledge of family laws will help you know what to expect and prepare for any concerns or questions that may arise. Showing the judge that you are conversant with the law and have an interest in understanding what you are required to do can increase your chances of getting custody of your child.
The court will always evaluate your commitment and dedication to the children; hence, you should never refuse to do what the court asks of you. This will provide you with an opportunity to show the family court the lengths you are willing to go for your child’s wellbeing.
How are Custody Decisions Made for Unmarried Parents?
When parents who are not legally married decide to separate, the court often awards sole custody of the children to their mother. Sometimes the father may take action to try and get the custody, but his chances of winning over a mother who is a good parent are low.
Just like for the divorcing parents, unmarried couples who are caught up in a child custody battle have the same options when it comes to custody determination procedures. However, the process of obtaining the child custody orders may be more straightforward for these parents since they don’t have to resolve complicated divorce issues.
When deciding to award the child custody for unmarried couples, the court's primary focus will revolve around identifying the parent who is most involved in the child’s daily life.
Types of Child Custody
There are two primary types of custody that a judge grants in a child custody case. The decision will be made considering the effects of living or not living with you on the general well-being of the child.
Physical Custody
Physical custody order determines the daily care of the child and states the parent who will live with them. If you are granted physical custody of your child, your home will be their legal residence. In this case, a parenting schedule is made to clearly define when each parent is responsible for taking care of the children.
There are different forms of physical custody:
Sole Physical Custody
Under Family Code 3007, sole care (also known as primary custody) is an arrangement where one parent will live with the child, and the other parent will be granted visitation rights. If your partner is awarded the sole physical custody of the child, the child will be under their supervision, and you cannot take them for an overnight stay without your partner’s consent.
The Birds Nest Custody
This type of child custody often applies to spouses with older children. The children will be left in the family home, and the parents will take turns to move in and spend time with them. This type of custody arrangement gives a sense of stability for the children, and the burden of moving from one house to another is passed to the parents.
Split Physical Custody
Split physical custody is applicable for couples who have more than one child. If you are going through a divorce or separation, the judge may decide to give physical custody of some children to you and the rest to your ex-spouse.
Joint Physical Custody
Under Family Code 3004), joint physical custody is an agreement where each parent has significant (if not equal periods) of the physical care. The primary goal of joint physical custody is ensuring your child has continued contact with both parents. Hence, the child is going to live with both of you at different periods as set by the court. Note that obligations such as schooling may hinder equal joint custody as it may destabilize the child’s school attendance.
Legal Custody
Having legal custody of your child or children means having a right to make decisions that affect the child’s education, health, and general welfare. The common forms of legal custody are:
Sole Legal Custody
According to Family Code 3006, the full/sole legal custody occurs when the custodial parent gets exclusive rights to make essential decisions on the health, religion, and education of the child. This type of care is often granted if it is evident that the other parent is incapable of making sound decisions or has a history of impaired mental health.
Joint Legal Custody
Under Family Code 3003, if joint legal custody is granted, both parents will have a right to be involved in decision making on where their children should school, type of medical treatment to seek, and the religious affiliation of their child.
In most cases, judges prefer to grant joint legal custody to give a chance for both parents to be a part of essential matters in the child’s life. However, if you are awarded joint legal custody, you must be able to work together and consult with each other before making important decisions regarding the child. In case of disagreement on a given resolution, you are required to settle the matter in court.
Types of Visitations in Sole Child Custody
When the judge grants sole custody of your children to the other parent, you are likely to be allowed visitation. Thus, it is essential to understand the different types of orders for your visitation rights as mentioned below:
Reasonable Visitation: This type of visitation is open-ended such that the days you can see and spend time with your child are flexible.
Scheduled Visitation: This visitation order states the specific days and time you will be spending with the child.
Supervised Visitation: This order is often granted when the safety of the child is not guaranteed. If you get these visitation rights, your visits and interactions with the child or children have to be supervised by the custodial parent or another adult.
What Happens if a Parent Violates a Child Custody and Visitation Order?
If one parent violates the child custody and visitation orders, the other partner is required to contact the local police to reinforce the order. They should then contact the county district attorney, specifically the Child Abduction and Recovery Unit. Finally, he/she can file for contempt in court, upon when the court will make its ruling.
Find an Attorney for Child Custody Attorney Near Me
If you want to know more about child custody in San Diego, California, contact the San Diego Family Law Attorney at 619-610-7425. Our attorneys can advise you on any issue concerning child custody, and even represent you in court to win custody for your child.
