Getting a divorce can be one of the most difficult situations anyone can experience. And when children are involved, it’s even harder. Fighting for child custody in California during a divorce can be emotionally and financially devastating. Thankfully, there are a few things you can do before and during the court case to decrease conflict and increase your chance of receiving an outcome that works for your family dynamics.
Child CUSTODY Law in California
In California, there are two types of custody orders: legal custody and physical custody. Legal custody determines who has decision making authority for medical treatment, therapy, religious practices, travel and more. Physical custody orders determine who is the primary caregiver to the child. Either parent can have sole legal custody of sole physical custody of the children, but the typical order in California is joint legal custody and joint physical custody.
When talking about custody, sometimes the term “sole custody” is used, and sometimes the term “primary custody” is used. The term “sole custody” is typically only used when talking about legal custody, and only applies to physical custody when only one parent has custody of the child, and the other parent has very, unusually limited contact with the child. Primary custody typically describes a custodial timeshare where one parent has the majority of the time – like 80%. This term is not used as much as it has been used in the past.
Often, the parents are able to agree to a custody arrangement during separation, but this is always a fluid situation. Custody does not usually firm up for a few months after the parents separate as they try to figure out what works and what doesn’t. If the parents can reach an agreement outside of court, they can prepare a stipulation which will make their agreement an enforceable order of the court. When the parties cannot agree to a custody agreement, a judge will make the final decision about custody and visitation. The judge will often rely on recommendations put together by Family Court Services, after the parents meet with a court mediator to try to resolve their issues and develop a plan that works for them. In most California counties, this mediation process is mandatory.
The judge’s main priority in a California child custody case is to decide what is in the best interest of the children. It is the responsibility of the parent (and their legal representation) to show that they are a loving, responsible and stable parent that can provide a safe and supportive home environment for your children.
TYPES OF CHILD CUSTODY ORDERS IN CALIFORNIA
In California, child custody orders can be temporary or permanent. Temporary orders are only for a certain amount of time but can be modified at any time based on the best interests of the children. Permanent custody orders require a more significant change of circumstances to modify – like a change in residence, or a significant change in one parent’s ability to care for the children. You can get a child custody order as soon as the divorce or paternity action is filed with the court and you are no longer living together. The court cannot make custody orders while the parties are still living together.
DETERMINING WHO GETS CUSTODY IN CALIFORNIA
The State of California has clear guidelines for child custody, but there is no set custody order. The court encourages an equal share of time between both parents (if possible), and neither parent is given priority for custody. Mothers are not automatically granted custody and the courts do not differentiate between who filed first. The court prefers that parents work together to craft their own child custody plan based on what they believe is best for the children. Keep in mind that this is not a decision on who is the “better parent” – this is not an opportunity to trash the other parent to the court because this approach only serves to make both parents look bad. Rather, custody is based on factors like which parent is better able to care for the child on a day-to-day basis, provide a stable environment, and encourage continuing contact and visitation with the other parent.
VISITATION RIGHTS OF GRANDPARENTS IN CALIFORNIA
Under California law, grandparents can ask the court for reasonable visitation with a grandchild. It is not uncommon for grandparents to employ their own legal representation in a child custody case to look after their specific interests. Just like parental custody, the court prefers families work out the details and come to a mutual decision on their own.
To receive reasonable visitation with a grandchild, the court must find there was a pre-existing relationship between the grandparent and the grandchild that has “engendered a bond,” in legal terms. Basically, this means there has been a bond established between the two that is in the best interest of the grandchild. Secondly, there must be a balance between the child having visitation with the grandparent with the rights of the parents to make decisions about their child. This can be a complicated request to make, and there may be other options available to grandparents, like a guardianship. We would be happy to discuss the different approaches with you if this is a concern.
MORE COMPLICATED CHILD CUSTODY CASES IN CALIFORNIA
The majority of custody issues are still resolved outside of court. However, in cases where various factors make it difficult or impossible to resolve custody issues, you may need an attorney to help guide you through the process, especially where your case involves complicating factors such as abuse (mental or physical), drug or alcohol use, alienation or other mental health issues.
When one parent or guardian wants to relocate to another state, determining what is best for the children can become even more complicated. In these situations, an experienced attorney can help you strategize approaches and navigate the often confusing law that is applied in these cases.
HOW TO PREPARE FOR YOUR MEETING WITH AN ATTORNEY TO DISCUSS CHILD CUSTODY
Choosing the right attorney is a personal choice, and you may want to meet with more than one attorney before you decide. This is one of the most important decisions you will make for yourself and your children, so you need to feel comfortable that your attorney is going to have the experience necessary to handle your case, and will listen and respond to your concerns. One way to figure out if an attorney is a good fit is with an initial consultation. For this first meeting, it is very helpful if you come prepare with some basic information. Since every case is different, it is hard to provide a comprehensive list of everything that you will need, but here is a good start:
First, keep a list of any questions or concerns you have so you can be sure to have these questions and concerns addressed during your meeting. Some attorneys will review questions or documents prior to the meeting to be better prepared. Most lawyers charge by the hour, so having your questions and concerns handy will help save time and make sure you get what you need from the meeting. Always ask if you can follow up with the attorney if you have another question that comes up after the meeting. Some attorneys will happily answer brief follow up questions, but for more complicated or involved questions, it may be better to set up another meeting.
Second, have a copy of the current child custody agreement or custody arrangement, if there is one. If you have not yet decided on a plan, make sure that you outline your idea of how you would like the children to spend their time with each parent and any problems or concerns you have with this arrangement. Having an outline will keep you focused on your end goals.
Third, bring along any reports or supporting documents you might need. This can include reports done by or for Family Court Services, private therapy evaluations, IEPS or custody evaluations. Be sure to include the most recent documents or any pending actions so the attorney knows where you are in the process.
IMPROVING YOUR CHANCES FOR CHILD CUSTODY IN CALIFORNIA
As a parent, there are a few things you can do to improve your side of the case in a California custody battle. The first is obviously acting and behaving like a responsible adult. The court recognizes that there is no such thing as a perfect parent; what matters most to the court is whether you can be a responsible, caring, stable parent for your child now. There is no changing the past, but you can begin fresh today and act as a responsible and engaged parent. It is never too late to make a positive change.
Even if you are still struggling with all the negative feelings about the other parent – anger, betrayal, confusion, loneliness – it is important to set aside your own struggles to be a good parent for your children during this difficult time.
The court also gives a lot of weight to your stability in your children’s lives. Spend time with your kids. Participate in activities with them – show up. Skipping or cancelling appointments and pre-arranged visits is not only disappointing to your kids but can also signify to the court that you are an uninterested parent.
Dependability and reliability are important, but so is being flexible and working with the other parent to accommodate their schedule or changes to the children’s schedules. Demonstrate that you are a responsible and reliable parent by always picking up your children on time from after-school events, sports and other activities.
Creating a safe, supportive environment in your own home for the children is always beneficial. Don’t allow your children to be babysat by someone who has been convicted of a sexual offence; don’t allow someone with a DUI to drive your kids. If you would not be comfortable with the other parent doing something, don’t do it yourself.
Many parents want to know if moving in with a new partner is going to hurt their custody case. There is no simple answer. Just remember, the focus is on what is best for your kids not what is easiest for you. It’s only natural to pursue a new relationship, but moving in with a new partner or having them live with you immediately after a separation can have a very negative impact on your children. How and when to approach the kids will depend on a lot of factors, and is something that is best discussed with a child centered therapist rather than an attorney.
Divorce is always hard on the kids, but you don’t have to make it worse continuing to fight with the other parent in front of the kids. It’s best to avoid arguing or publicly fighting with your ex. This can include fighting in person, on the phone or through text, and on social media.Do not include the children – no matter how old they are – in your divorce. Children should never be part of your own therapeutic process and should not be a part of the divorce. Lean on close friends, family members, therapists or spiritual leaders to help you channel your emotions productively.
There are few “hard and fast” rules about parenting, but in California, corporal punishment (“spanking”) is not tolerated. Even if both parents have spanked your children in the past, physical punishment of any kind is not tolerated by the court and could have significant repercussions on your custody rights.