Generally in California any child who is under 18 years old, and has never been married, may be subject to child custody orders issued by the Court in an appropriate legal action.
Kinds of Custody:
There are two major aspects of child custody that are decided in a child custody order: legal custody and physical custody.
Legal Custody: is the right to make major decisions regarding the health, education and welfare of your child.
This covers such issues as who decides what doctor should treat your child, what religious practices should your child follow, and what school should your child attend.
Physical Custody: is the right to have physical care and supervision of your child. In other words, physical custody addresses who the child will be living with on a day-to-day basis.
Types of Custody Orders:
Award of Legal Custody: In a custody order the Court should designate who has legal custody of your child. Generally, the Court does this by ordering one of two types of legal custody:
- Joint Legal Custody: means both parents equally share the right and responsibility to make the major decisions your child's health, education and welfare.
- Sole Legal Custody: means only one parent has the right responsibility to make the major decisions regarding your child's health, education and welfare.
Orders Addressing Specific Legal Custody Issues: Besides awarding legal custody of your child, the Court is also free to issue orders addressing specific legal custody issues. For example, the Court can order that parents are to confer before making decisions regarding where your child will attend school, whether your child will attend psychological counseling, or whether your child will participate in an extracurricular activity. The Court could also order that one parent will have the power to make the sole decision regarding a particular aspect of legal custody (e.g. over your child's medical care) while all other legal custody decisions remain under joint legal custody.
Award of Physical Custody: Besides designating legal custody, a custody order also designates who has physical custody of the child. There are two types of formal physical custody orders:
- Joint Physical Custody: means the custodial time share has been arranged in such a way to allow both parents have significant periods of physical care and supervision of the child.
- Sole Physical Custody: means the child resides and is under the supervision of one parent. When one parent has sole physical custody, the other parents' custodial time with the child is considered that parent's visitation time with the child.
Orders Addressing Physical Custody Issues: Besides simply awarding physical custody to one or both parents, most child custody orders also detail the parenting schedule (i.e., the days and times the child will be with each parent). Additional orders can be given regarding such issues as who will provide transportation in order to accomplish custody transfers, whether the child can be taken out of the state of California without the other parent's permission, and whether visitation with a non-custodial parent must be supervised.
Who can Decide Custody / Visitation Issues:
The Parties: The parties to a divorce or legal separation are free to decide all custody issues regarding their children for themselves. All agreements regarding custody should be placed in writing and made part of a Stipulation and Order or part of the Judgment of Dissolution or Legal Separation, whichever is appropriate.
The Court: If the parties cannot resolve all their custody issues between themselves or with the help of legal counsel, any unresolved custody issues can be presented to the Court for resolution.
How the Court Decides Custody/Visitation Issues:
Best Interest Standard: All custody and visitation issues are to be decided by the Court based on the child's best interests. The Court has broad discretion in deciding what is in the child's best interests and may look at all relevant factors. These factors may include (but are not limited to):
- The health, safety, and welfare of the child;
- Any history of domestic abuse by the parent seeking custody against the other parent, against any child related to the parent or whom the parent has taken care of; against his/her parent, against parent's current spouse or person he/she is living with, or against someone the parent is dating;
- Any regular abuse of illegal drugs, prescription drugs, or alcohol by either or both parents;
- The amount and nature of parental contact with the child by each parent, however, the court will make no inference against a parent who is absent when: a) the absence was for a short period of time, the absent parent tried to regularly contact the child, and showed no intention of abandoning the child; or, b) the parent is absent due to being the victim of domestic violence and has shown no intent of abandoning the child; or, c) the absent parent is performing military service.
- The wishes of the child so long as as the child is old enough to make an intelligent decision. If the child is over 14 years old and wishes to address the Court regarding custody or visitation (i.e. wants to "talk to the Judge") this must occur unless the Court determines it would not be in the child's best interests. Children under 14 years old might also be able to talk to the Judge.
- The developmental needs of the child given the child's age or special circumstances regarding the child's mental or physical development.
- The willingness of each parent, to allow communication between the child and the other parent, to support the bond between child and the other parent, and to generally co-parent.
Procedure for having the Court Decide Child Custody/Visitation Issues:
The many aspects involved in having a Court hold a hearing or trial to decide your child custody issues are too numerous to address here. However, some of the major items involved in obtaining a Court resolution of child custody issues shall be discussed so to allow you to at least have a brief introduction to the legal process.
File the Proper Legal Pleadings: Before a court can properly address child custody issues the proper pleadings must be filed and served. For example, if the parents are married, either or both parents can file for custody as part of their divorce or legal separation case. A married parent can also file a petition for custody without filing a divorce or legal separation action. If the parents were never married, either parent can filed for custody in the county in which the child is living (usually by filing a paternity action). Child custody orders can also be issued as part of a domestic violence action.
Attend Mediation: In most child custody cases parents will have to attend mediation with Family Court Services. For our purposes, meditation is when a neutral third party attempts to help the parents reach an agreement on child custody and visitation issues. Usually, but not always, mediation occurs with both parents meeting together with the mediator. Meditation can be also be conducted with the mediator meeting separately with the parents in cases where there are allegations of domestic abuse between the parents.
Alameda, Contra Costa, and Solano counties have recommending meditation. This means if the meditator cannot help the parents reach full resolution of the child custody issues, the mediator will make a recommendation to the Judge as to what the mediator thinks the Court should order as to the disputed custody and visitation issues.
Attend Hearing(s) and/or Trial on Your Child Custody Issues: While a Family Court Service mediator may make recommendations as to child custody and visitation orders, the final decision as to what child custody orders will be issued in your case is left to the Judge. The Judge will only issue on going child custody orders after the proper hearing and/or trial is held. All hearings and trials on child custody issues are subject to formal rules of court and other statutory law.
Need to Consult an Experienced Family Law Attorney
Child custody and visitation issues can be complicated and emotionally sensitive. You may need the assistance of an experienced attorney who is dedicated in ensuring that your rights and interests as a parent are protected. Daniel Portillo has over 25 years experience in California family law. He can help advise you as to how to best present your point of view as to your what is in your child's best interests to both the mediator and to the Court. Contact attorney Daniel Portillo to discuss all aspects of child custody / visitation case as well as any other issues involved in your divorce or family law matter.