In California divorce cases, the courts determine child custody rights based on the best interests of the child. If you and your partner have a child custody dispute, it is important to engage a California family lawyer near you for help.
There are many intricate details of family law that can affect the court’s decision on whom to award child custody to. With an attorney on your side, you can be sure that your interests will be put into consideration during the negotiations or the custody dispute.
What Do California Courts Consider in Child Custody Disputes?
In any child dispute case, the court will keep the interests of the child first. According to the law, both parents have equal rights to custody of their children. Therefore, a judge cannot give preference to either parent based on their sex.
To determine the best interests of the child, there are two main principles that the court will follow:
- The child should benefit from frequent and continuing contact with both parents
- The health, safety, and welfare of the child must be considered
The court may further expound on the above two principles, depending on the individual case, to determine the direction of the custody battle. Here are some relevant parenting factors that may also be considered:
Health and Safety
In determining child custody disputes, California courts will always consider the health and safety of the child. For example, if a child was conceived as a result of the father raping the mother, the judge can refuse to grant visitation or custody rights to the father.
The law also prohibits granting of unsupervised visitation or custody rights to a parent that has been convicted of various crimes. For example, custody would be denied if a parent murdered the other parent or has been convicted of sexual or physical child abuse.
The only exception to this rule is if the court determines that the parent’s history does not pose a risk to the child. In such a case, the court has to explain in writing the reason for granting custody or visitation rights to the parents.
Sometimes, the court can limit custody or visitation rights of a parent that may have been accused of sexual or physical abuse of the other parent, even if there was no conviction. If a reliable third party, such as a child protection agency, can collaborate the abusive behavior, the court will rule against the abusive parent.
In considering the health and safety of the child, the court will factor in whether a parent is a habitual drug or alcohol user. This factor can also be collaborated by a reliable party, such as a rehabilitation facility or a state agency.
What the Child Prefers
If a child is mature, the court will consider his/her wishes regarding custody. The law does not explicitly indicate an age when a child is considered mature. However, the older a child is, the more the court is likely to give substantial weight to what he/she wishes.
The courts wish for the child to grow up with both parents. As a result, when evaluating child custody disputes, the judge will consider which parent is more likely to encourage a positive relationship between the child and the other parent. Here, the court will want to determine whether a parent will be willing to allow the other parent frequent and continuing contact with the child.
A parent that is likely to cause interference of the relationship between the child and the other parent is looked at unfavorably by the courts. For example, if one parent accuses the other of false sexual charges in a bid to keep the child away, the false accuser is likely to be denied custody. Moreover, the parent’s visitation rights to the child may be limited.
Continuity and Stability
Another thing that the court considers before determining child custody cases in California is the continuity and stability of the child. The court will want the child to be in a familiar environment, which may include the school, neighborhood, and where his/her friends and primary caretakers are.
In most cases, the judge will keep the child together with their siblings.
Available Custody Options
When it comes to custody options, there are two fronts that the court will look into: legal custody and physical custody.
Legal custody refers to a parent’s authority to participate in major decisions that affect the education, health, and welfare of a child. For example, a parent with legal custody has a right to participate in determining the school that the child should go to and what faith he/she should be raised in.
Physical custody refers to having physical access to the child. This may mean that the parent can either be living with the child or be allowed to see the child periodically, as would be agreed in court.
Finally, parents can also be awarded joint custody. With joint custody, both parents have physical access to the child but not necessarily the same time. Sometimes, a judge can award joint legal custody but not joint physical custody.
How to Get Custody and Visitation Court Order
Sometimes, parents can make their own child visitation and custody agreement without involving the courts. These agreements are binding and enforceable. However, if one parent does not follow the agreement, there is no way it can be enforced until it becomes a court order.
If you and the other parent have made an agreement and want it to be enforceable by law, you can hand it over to a judge. When the judge signs the agreement, it will become a court order. The order will then be filed with the court clerk.
If the parents cannot agree on custody and visitation rights, the judge can send a mediation team to try to patch things up. If no agreement is reached, even after the intervention of the mediation team, the parents will have to return to the judge for a ruling. The judge will then decide the custody and visitation rights of both parents based on what he/she feels will protect the best interests of the child.