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A great family lawyer will get you results! Call today.
California Child Custody Law
If you are considering a California divorce and have children, this may be the most stressful time in your life. At our firm, we recognize how important the health, education and welfare of your child’s life is to you. In an ideal situation, the spouses can put their interests aside and work together to create a parenting plan that promotes a healthy, supportive environment for the kids.
It is almost always better, and more economical, to agree on a sharing program, but we realize that when a spousal relationship erodes, the ability to agree on something as emotionally charged as with whom the children will live can be fraught with trouble. When the parents cannot agree on a plan that they both believe is in the best interests of the children, either side can ask the court, through a Request for Orders re Child Custody, to make a determination.
In California, the main focus of the court in fashioning custody orders will always be the “Best Interests of the Child” (3011 Family Code). The statute provides the following considerations for awarding child custody in a California Dissolution:
(1) The health, safety, and welfare of the child.
This is and always will be the highest priority of the court in placing the children.
(2) (A) A history of abuse by one parent or any other person seeking custody against any of the following:
(i) A child to whom the parent or person seeking custody is related by blood or affinity or with whom the parent or person seeking custody has had a caretaking relationship, no matter how temporary.
(ii) The other parent.
(iii) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
(B) As a prerequisite to considering allegations of abuse, the court may require independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this paragraph, “abuse against a child” means “child abuse and neglect” as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in clause (ii) or (iii) of subparagraph (A) means “abuse” as defined in Section 6203.
Obviously violence in the home is very detrimental to children, and the law even creates a presumption that a parent found to have perpetrated violence against a spouse or child is presumptively unfit to have custody of the minor children (3044 FC) If the parties cannot agree by stipulation to custody, a parent that has proven to have committed domestic violence must face a rebuttable presumption that have been “rehabilitated” and are capable of providing a safe environment for the children.
(3) The nature and amount of contact with both parents, except as provided in Section 3046.
This focuses on whether the parents are making efforts to have frequent, meaningful contact with the children during the separation. The exception under 3046 is for when there is a temporary relocation, for either work or protection against domestic violence. Abandonment or neglect would be reasons to deny custody to a parent.
(4) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this paragraph, “controlled substances” has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.
Drug/alcohol abuse can seriously affect a parent’s ability to raise a child, but false accusations of substance abuse or alcoholism are looked upon with disfavor by the court. It is not uncommon to see such accusations made by parents fighting for custody of their children, but independent evidence corroborating such abuse is helpful to substantiate such claims.
(5) (A) When allegations about a parent pursuant to paragraphs (2) or (4) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (c) of Section 6323.
(B) This paragraph does not apply if the parties stipulate in writing or on the record regarding custody or visitation.
Again, agreements between the parties are largely favored by the courts, and the ability to set pride and ego aside to do what is best for the kids is usually the winning strategy in a custody battle, however when the parents cannot come to an agreement, an experienced litigator can marshal the facts and law together to create compelling argument for our clients.
(b) Notwithstanding subdivision (a), the court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child.
This section is self-explanatory but helpful to keep in mind.
With the initially-simple-sounding “best interests of the child” standard, custody battles are never simple, but by gathering listening to our clients, gathering relevant facts, and aggressively applying the law, our firm can protect your interests and ensure the court sees you are fighting for the best interests of your child.
Does my child’s Opinion on Custody Matter?
Depending on the age and maturity of the child, it might. Under 3042 FC, the court can consider the preference of the child in determining custody orders. “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.” Generally, a child 14 years or older may express a preference, and “due weight” is subject to a larger contextual view by the court, as many teenager’s may prefer to avoid discipline and structure, but that is not necessarily in their best interest. The court has broad discretion in the mechanisms of taking a child’s testimony, including appointing an expert for an evaluation (730 FC), allowing the child to testify with or without the attorney’s present, or even appointing an outside attorney to represent the child’s interest (minor’s counsel).
Call today to prepare a plan that allows you a greater weight in achieving what is in the best interests of your child in negotiating or fighting for child custody.