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Child Custody Explained by Family Law Lawyers

In family law, child custody refers to a parent's right to have his or her minor child in his or her physical presence (physical custody), and/or the right to make legal decisions for the care and safety of his or her child (legal custody).

Adoptive Parents: An adoptive parent is a non-biological parent who legally assumes the rights and responsibilities of a child after the biological parent’s rights and responsibilities to the child are terminated. Adoptive parents and biological parents have the same child custody rights. See Stepparent Adoptions.

Note: With some limitations, before a man can establish child custody rights to a child born to a woman with whom he was not married at the time of the child’s birth, he must first establish that he is either the child’s biological parent (or defacto parent). To do this, he must file a paternity suit in family court. Child custody rights may be filed simultaneously with paternity suits. A child born during marriage is presumed to be the child of the husband, but that presumption may be rebutted by DNA evidence in paternity suits. See Paternity Suits & Father’s Rights.

A child’s parents, whether married, never married, divorced, or legally separated, are equally entitled, and generally free, to make any informal or formal agreement as to how they will share physical and/or legal custody of their child, so long as that agreement is otherwise lawful and does not harm the child. When parents cannot agree on how they will share physical and/or legal custody of their child the parent(s) may wish to file a request to establish child custody rights.

A request for child custody orders, or modification of child custody orders, may be filed simultaneously with a divorce petition, a domestic violence restraining order, or a paternity suit.

Types of Child Custody

Legal Custody: Legal custody refers to a parent’s right to make legal decisions about his or her child’s heath, education, religion, therapy, extra-curricular activities, travel, and associations. Legal custody may be joint legal custody, which means that both parents share equal rights to make legal decisions for a child, or sole legal custody, which means that one parent has the exclusive right to make important legal decisions for a child. When parents share legal custody of a child the parents must work together to make legal decisions for their child.

Note: Sole legal custody may be granted to a parent when the other parent abuses a child, is unable to care for a child, or refuses to join in the legal custody of the child.

Physical custody: Physical custody refers to a parent’s right to have his or her child physically present and reside in the parent’s home. Physical custody may be joint physical custody, which means that the child lives with both parents an equal or significant amount of time, or sole physical custody, which mean that the child lives with one parent entirely or the vast majority of time. When one parent has the majority of joint physical custody that parent is said to be the primary physical custodial parent. The non-primary custodial parent is said to have parenting time, also called child visitation. For more information, see Child Visitation.

Note: The parent who is likely to ensure that the other parent has frequent and continuing contact with his or her child is usually the parent who is granted primary physical custody.

Temporary custody: Temporary custody refers to a temporary status of child custody (physical, legal, joint, or sole) that is ordered by the family court until the court has an opportunity to make permanent orders based on relevant evidence offered at trial. Temporary child custody orders arise in two circumstances: where the court adopts the orders recommended in the mediator’s report but one or both parents object to the recommendation, or where emergency child custody orders are sought for the immediate protection of the child. See Ex Parte Hearings.

A parent may be granted any of the following: sole physical and sole legal custody, sole physical and joint legal custody, joint physical and sole legal custody, or joint physical and joint legal custody, depending on the circumstance.

Best Interest of the Child

Before the family court awards any type of child custody to a parent (physical, legal, sole, or joint), the court will consider the custody arrangement that is in the best interest of the child. The law presumes that the best interest of the child is to have frequent and continuing contact with both parents (joint physical custody) and that both parents share the legal rights and the legal responsibility of raising a child (joint legal custody); however, this joint custody presumption may be rebutted with any relevant evidence that shows joint custody in not in the best interest of the child.

Relevant evidence includes, but is not limited to, evidence concerning the following: the child's safety, the child’s health, the presence of domestic violence, the presence of parental substance abuse, the child’s emotional ties to a parent, the child educational needs, the child’s home environment, the child’s age, the child’s need for continuity and stability, the presence of any alienation of the child by one parent towards the other, a mediator’s recommendation, the results of court ordered alcohol or drug testing, and/ or a psychologist or pyschiatrist recommendation (also known as 730 evaluation).

Note: The immigration status of a parent is not relevant when the court considers the best interest of the child.

Child Custody Court Mediation

Child custody mediation is mandatory when parents do not agree on child custody issues. Mediation provides the parents an opportunity to attempt to resolve their child custody disagreements with the assistance of a licensed mediator. The court prefers that parents come to their own child custody agreement, if possible and safe for their child, instead of having the court intervene in the parents’ decisions concerning their child.

If the parents are able to agree on a child custody at mediation, and the mediator finds that the agreement meets the best interests of the child, the mediator will draft a parenting plan. The parenting plan will then become the order of the court upon the family law judge's’ signature. If the parents cannot come to an agreement the mediator will make a custody recommendation for the judge (in San Bernardino and Riverside County). The recommendation of the mediator is usually, but not always, adopted as a temporary child custody court order pending a trial on the issues.

For more information, See Family Court Services Mediation.

Filing for Child Custody

A request for child custody orders, also called a request for order (RFO) may be filed as a non-emergency, or as an emergency, also known as an ex parte request. The ex parte request is reserved for emergencies only, where the health and/or safety of the child is in imminent danger and emergency custody orders are needed to prevent or mitigate that danger. Common ex parte grounds include, but are not limited to, the presence or likelihood of domestic violence, child abuse, child neglect, substance abuse, child abduction, or alienation by the responding parent.

The forms required to start, or respond to, an RFO on child custody, may be found at Child Custody Forms.

Note: Filing for, or responding to, a request for child custody orders, can be very complicated. Mistakes are commonly made for parents who chose to act as their own attorney. Unfortunately, those mistakes can lead to unrecoverable lost time with a child. Remember, court forms do not provide information on any of the following: drafting persuasive declarations, screening declarations for statements against civil or criminal interest, serving and filing necessary documents, court rules and procedures, complying with evidence and procedural rules (i.e. evidence introduction, evidence objection, witness examination, foundation, hearsay, relevance, etc.), common mistakes to avoid, and more. Keep in mind that family law judges are not lenient on the rules of court, procedure, or law, just because a parent is unaware of the rules.

Response to Child Custody RFOs

A parent who is served with a request for child custody orders has the right to respond to the request. In fact, if a parent does not respond to the other parent’s request, the court may make orders adverse to the non-responding parent’s rights. Forms for responding to a request for child custody orders may be found at Child Custody Forms.

Modifying Child Custody Orders

If a parent wants to change established child custody orders he or she must convince the court that there has been a significant change in circumstances that warrants new child custody orders. A significant change in circumstance usually includes, but is not limited to, any of the following: a parent moves, a parent’s job relocates, a child’s school relocates, a parent becomes incapable of caring for his or her child, a child's needs change, etc. When a parent seeks a change in child custody orders due to the other parent’s abuse or neglect the non-abusive/neglectful parent should file a modification of the child custody orders on an emergency basis. For more information, see Modification of Orders & Ex Parte hearings.

Contempt of Court

Contempt of court is the willful disobedience of a court order. If a parent willfully disobeys a child custody court order the other parent may either file an affidavit for contempt, or file a criminal complaint with the local police or district attorney’s office. A conviction for contempt of court carries harsh civil and criminal penalties. See Contempt of Court.

Child Visitation & Child Support

Child visitation and child support requests are usually, but not required to be, filed with a request for, or response to a request for, child custody orders. For more information, see Child Visitation & Child Support.

For more information on California child custody laws, contact our family law lawyers today. There is no charge for an initial in-office consultation and our lawyers are available six days a week to assist you. Call today!

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