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Rights Issues

Divorce and separation are never simple issues to deal with, especially when children are involved. The best interest of children will always come first in all legal agreements. It is, therefore, important for parents to know their rights and responsibilities. Even in cases where both parents agree on what should be done after their divorce, they both need to know what they are agreeing to as well as what they are compromising in the process.

At San Diego Family Law Attorney, we understand California rights issues very well, to be able to advise both parents on their rights. California law requires both parents to agree on issues regarding their children before the court determines their case. Other than representing you in the family court, we can act as your mediator to ensure that there is a consideration for your best interests in the end. If, therefore, you are going through a divorce in San Diego, CA, get in touch with us for a smooth process.

Understanding California Parental Rights after Divorce

One of the most challenging things to contend with during a divorce is issues regarding child custody, visitation, and child support. If both parents have been actively involved in the lives of their children, there is bound to be some disagreement regarding custody and visitation. Unfortunately, some parents will try to frustrate their partners during this period, just to get back at them, without caring about the best interests of their children. That is why it helps a lot if you are working with an experienced family law attorney. He/she will help you understand your rights and also fight by your side to guarantee no violation throughout the process.

When a marriage ends, and it bore children, the most affected are usually the children. Parents must understand that divorce does not end their rights or obligations towards their children. If anything, both parents should be involved more to make sure that their separation does not affect their children emotionally and physically. For that reason, there is a need for parents to agree on what should happen to their children after divorce. It happens through mediation, where both parents sit through a series of meetings, and with the help of their attorneys, they come up with the way forward regarding custody, visitation, and child support.

If both parents are unable to agree on any or all of these matters, their case will be returned to a family court for the judge to come up with the verdict. Before these issues are determined, there are two essential rights that parents should be aware of during this period:

Parental Rights to Information

Every parent has a right to information regarding their children. Anything that pertains to their children should be communicated equally to both parents. It means that parents have a right to take part in all decision-making processes that surround the upbringing of their children. Some of these processes include those that are involved in decisions such as their children's medical care, mental healthcare, religious upbringing, and schooling options. It is what we call legal custody in the state of California.

Even after the divorce, both parents get to maintain their legal custody rights to their children. It is so, even though the time they will be spending with their children is not the same. If one parent wants the other parent's legal custody right removed, they must demonstrate that he/she is not capable of making sound decisions pertaining to the child. In case of a disagreement between both parents on legal custody issues, the court will intervene. In most cases, the judge will rule in favor of the custodial parent, as he/she is the person who will be spending more time with the children. It is for the reason that this is the parent who the court views to be the most conversant with the interests and needs of the children.

Parental Rights to Time with Child

This, too, is a right for both parents, regardless of their custody rights after divorce. Both parents have a right to spend time with their children as well as getting involved in their children's daily routines. It includes parent's rights to picking their children up and dropping them off to school; going to dinner; being with them during bath times; storytimes as well as helping them to bed. This is called physical child custody in California.

In cases where one parent gets exclusive physical custody, the other parent gets frequent visitation rights to be able to spend quality time with the children. Note that this only happens on rare occasions, for instance, if one parent relocates because of a job or works in a business that has unreliable work schedules. If not, a California family court will grant both parents physical custody and allow them to agree on how that will work for the best interest of their children.

More and more family courts in the state of California are resulting in granting both parents joint custody, which allows them to spend equal time with their children. It also helps the parents to enjoy a friendly separation despite their differences.

When issues are raised in court regarding legal and physical custody, judges and mediators alike will consider both parents' status quo. Issues regarding their involvement with the children before the divorce will emerge. Things will be different if there is proof that only one parent was responsible for taking care of the children during and after split-up. If that is the case, that is the parent; the court will grant exclusive physical custody. It, however, does not mean that the other parent will not be allowed time with his/her children.

Rights for the Unmarried Parents

Issues regarding child custody are generally complicated, and more so when it comes to unmarried parents. When two parents have a child/children together, the sole custody of those children/children goes straight to the mother. The father is, however, allowed to pursue custody but in individual circumstances. Generally, an unmarried father in California has no legal rights to the visitation or even custody of their child. Only a legal parent is allowed to contest their rights in court.

Just the same as a married couple, two parents that have been bringing up a child together can decide to separate. In such a case, the court will require both parents to establish parentage to claim their rights to their child/children. In California, this is for the unmarried couple, done by filing legal documents in a family court to declare their parentage if they wish to exercise their parental rights. It is accomplished through a declaration.

The filing of this paperwork can be done at any time. It is advisable to do it immediately, as it ensures that both parents are fully involved in the life of their child even if they are living separate lives. Once both parents have established their parentage, they will be allowed to obtain information about their children as well as take part in their wellbeing and all decisions regarding their lives.

Can One Terminate Their Parental Rights?

Yes! California parents can terminate their parental rights voluntarily or through a court order. Any parent who does not want to take part in their children's lives can agree to surrender their parental rights before or even after a step-parent has expressed their wish to accept those children. Parents could also waive their rights to allow the children's grandparents to raise the children. The state's family law will enable parents to terminate their rights if there is proof that both or one parent has abandoned their child/children. Some of the indications that show that a parent has left his/her parental rights include:

  • If he/she has never provided any financial support to the child
  • If he/she has never had any physical contact with their child in the past year
  • If he/she has ever expressed their intention to leave the child/children

One parent can seek to dismiss the rights of another parent to block the parent from enjoying his/her rights again. California family law allows the following persons to terminate a parent's rights:

  • A legal parent
  • A parent
  • A stepparent
  • A sibling of or above the legal age of 18
  • Any adult that has been a primary caregiver to the child in the absenteeism of his/her parents

Again, California's family courts will always consider the best interest of the child before making any ruling on the termination of parental rights. The most important thing the judge will consider in granting both parents equal parental rights. However, if there are issues such as domestic violence, child abandonment, or child abuse, the judge may be compelled to favor one parent.

If your partner has filed documents in court to terminate your parental privileges, it is advisable to speak to a family law attorney immediately. Allow your attorney to handle the matter as our behavior during this period could be used against you in the family court.

Fathers’ Rights to Child Custody after Divorce

There is always an assumption that when two parents end their marriage, the mother automatically gets custody of the children, while the father is required to visit them and pay child support. However, things happen differently in California. There is a lot of consideration in determining the custodial parent and the parent to pay child support. Again, both parents are required to take financial responsibility in meeting the needs of their children, and to get involved in their children's lives. Note that the rights of parents are the same in California regardless of their gender

What this means is that fathers, too, have equal custody rights as mothers after divorce. Custody rights, in this case, fall into two classes: legal and physical custody. If the father gets physical custody, it means that he will be in charge of where the children will live, and also in making significant decisions regarding the children. Remember that the best interests of the children will be considered here as well, concerning the parent who gets custody of the children.

The father's physical custody rights enable him to stay with the children or at least visit them and spend more time together for a considerable amount of time. However, the father can only get this right once the court determines that he is really the children’s biological father. Once parentage is established, only a few issues can get in the way of a father's physical rights, such as proof of irresponsibility towards the child or child abuse.

Physical rights of a father can come in different forms, including:

Joint Custody: This is granted once the court determines that both parents are playing an essential role in the growth and development of their children. Through joint custody, both parents have equal rights to spend time with their children, as the court determines. In most cases, it ends up with a child spending more time with one parent than with the other. California fathers have a right to seek joint custody. They could also agree on how they will share custody with the mother out of court.

Sole Custody & Visitation: Any parent can get sole custody of their child under California family law, and fathers are not exempted from this. If a family court determines that the mother is not fit for joint custody, the father will be granted full custody rights. With such rights, the father will be responsible for the child's overall wellbeing, including where the child will live. If custody matters are not settled out of court, the judge is left to decide on who should be granted custody of the children and the type of custody each parent gets. Again, this is all based on the child’s best interests.

However, if the mother gets sole custody, then the father will get visitation rights. What this means is that even though both parents have not been granted equal custody rights to the child, the father is still able to spend more time with the children and make decisions regarding their lives. Sole custody is given to the mother in cases where the father stays or works away and is therefore unable to share joint custody because of the distance.

Factors That May Affect Fathers’ Custody Rights

The state of California is always in favor of joint custody, as this is what is deemed best for every child. It means that even if the mother is granted sole custody of the child, both parents will be given equal legal rights. This allows them to take part in all decisions about their children. While it is for the best interests of the child to have both parents in his/her life, certain factors could hinder a father's rights to custody. Some of these are:

  • If the father is under suspicion or has a conviction for child abuse, domestic violence, or violation of protective orders. All these are serious accusations that could affect your rights to child custody. if you are facing such charges, it is advisable to work closely with an experienced family law attorney to ensure that your rights are not violated
  • If the father has been absent from the child's life. If he has deliberately stayed away from their child, it is proof that he is not suitable for the responsibility that comes with child custody. If the father has a good reason for this, for instance, commitments or he was unaware of the child's existence, he might get visitation and later on custody once he establishes a relationship with his child.
  • If the father does not have a steady income, it shows that he may not be able to provide for the child. A California family court can only grant parent custody of a child if there is proof that he/she will be in a position to provide the child’s basic needs.

Fathers’ Rights to Child Support

Fathers have always been perceived as the breadwinners, and so, there is a belief that the court will automatically require the father to pay child support. This has improved over time, and mothers, too, are being required to pay child support. It all depends on the financial position of both parents. In California, both parents are required to provide financially for their children, irrespective of the type of custody they get.

Child support helps ensure that the child enjoys the same quality of life they would have if both parents were living together. It is based on the income of the parents and the child's financial needs. Even if the father is required to pay child support, the mother will not be expected to stay at home and not find a job. The law allows the father to enforce responsibility for his partner to find a good job to support the child as well. If the mother refuses to find a job, and she got the child's custody, the father is allowed to petition the court for the modification of that custody.

Find a San Diego Family Law Attorney Near Me

If you have just gone through a divorce and you are battling a case regarding your parental rights, it is advisable to work with a skilled family law attorney. California's family law is complex and could, therefore, be challenging to understand for a parent that is working with no legal representation. An experienced San Diego Family Law Attorney will ensure that you understand and protect your parental rights. Call us at 619-610-7425 if you are in San Diego, CA, and let us walk with you through the legal process.


Contact us today by calling 619-610-7425

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