When divorce or separation of parents happen, parents have to decide where and who stays with the children to protect their rights and interests. This process is not always easy since child custody matters are emotionally draining for both parents and children. With the help of the San Diego Family Law Attorney, you can seek to be granted child custody by a judge, which will determine your rights over the child.
You can either have sole custody or joint custody, which have different custodial arrangement terms as discussed further in this article.
Overview of Child Custody
Child custody laws are the state laws which govern your rights over your child after a divorce or separation. The child custody rights also indicate the visitation rights if the custody is entirely given to the other parent. There are two forms of custody which are of great concern in child custody battles.
- Physical custody
Having physical custody of your child means you get to live. You can either get to live with the child full time or for some time. When the child lives primarily with the other parents, you can get to visit them or have the child spend time with you.
- Legal Custody
Legal custody of a child is the right and obligation a parent has to decide on matters concerning the child. If you have a part in your child’s legal custody, you have the right to make decisions on the child’s education, medical care, and religious upbringing. When both of you have legal custody, you consult each other before making the legal decisions.
The purpose of child custody laws is to provide a legal structure for the relationship between you and your children after a divorce. In an ideal situation, you should work things out with your ex-spouse on how to handle the custody of your children. However, for most individuals, divorce bruises the relationship between parents making it difficult to agree. California child custody laws help define the family situation regarding the best interests of the children involved in a divorce.
The child custody laws will also apply to unmarried individuals who claim custody of the child based on being biologically related. Grandparents can also claim custody of the children if the actual parents are deemed unfit to take care of them. When you cannot agree with yourselves, you will have to go to court so the judge can decide for you. If you are in a child custody legal battle, it is crucial to consult a family law attorney.
Difference Between Sole and Shared Child Custody
When you find yourself in a child custody battle, it is crucial to understand what each type of child custody arrangement entails. This will help you acknowledge the kind that will work best for you and your children.
What is Shared/Joint Custody?
Parents who don’t live together may be awarded the shared custody, also known as joint custody. If you get this type of care, you will be expected to share responsibilities of the legal and biological children involved in the divorce. Joint custody can be awarded to parents who are separated, divorced, those who are no longer cohabitating as well as those who ever even lived together. Joint child custody could either be
- Joint Legal Custody
This means that both parents will have the legal right to decide on behalf of the child. These are decisions on education, religion, and medical care. When there are special needs children in a family or parents live far away from each other, joint legal custody is presumed to be most appropriate. To award joint legal custody, the court will reevaluate the moral conduct and actions of the parents’. This will help establish the parent with the best interests of the child at heart and will allow frequent contact with the other parent. Joint legal custody will work best when both parents show a real willingness to work together. The court may be reluctant to award shared legal custody if one parent is unreliable or incapable of making sound decisions. If you are hoping to get shared custody, ensure you have excellent communication with the other parent.
- Joint Physical Custody
Physical custody is where a child will live and receive daily care. If you get awarded joint physical custody, the child will spend substantial time residing with each parent. The parents will also share primary childcare responsibilities equally. However, the time spent with each parent does not have to be equivalent. Instead, each parent will frequently reside with the child.
- Joint Legal and Physical Custody
For this type of arrangement, you will get equal time to live with the child and make a decision for their important matters. This type of custody will be useful if the parents live close to each other. This will ensure that the children can comfortably move from one parent to another. To get the joint legal and physical custody, you must agree to what’s best for the child, and you both are actively involved in the child’s life. Additionally, the court cannot award joint custody if there is a history of child abuse or domestic violence.
Joint Custody Arrangements
When you share joint custody, you will have to work out a schedule to suit both of you. If you cannot agree on a plan among yourselves, the court will impose one. Common patterns include alternating days, weeks, months, and weekends between each parent’s houses. For older children, you can decide to place them at a family home, and both parents alternate moving in with them. This method, also known as a bird’s nest, will help avoid the situation where a parent fails to return the children after spending time at their house.
The Pros of Joint Custody
Parents who get awarded joint custody have to be in constant communication with each other. Even if the divorce bruised your relationship, the outcome of having to share the guardianship would be beneficial for the child. Children will be emotionally stable if they see their parents get along and interact healthily. Parenting can be a complicated process, and there are bad and enjoyable moments. Co-parenting will bring a positive input to the situation. This will apply for significant decision revolving around medical care or education.
The Cons of Joint Custody
When joint custody is awarded, especially for physical custody, the child may lose a sense of stability. This is due to the constant movement from one resident to another. This may also affect their social relationships due to their inability to maintain friends. If the parents do not get along or have poor communications, the children may get negatively affected. Some parents will tend to create a rift between the child and the other parent. This will make it difficult to co-parent. Maintaining two homes can be very expensive for both parties since parents are required to give primary care to the children.
If you are hoping to get shared custody from a legal custody battle, consider seeking help from an experienced family law attorney.
Sole Custody
This is a child custody arrangement where one parent has full physical custody of the child while the other parent may participate in decision making. However, if you get both sole physical and legal custody of your children, you will permanently live with them and make decisions on their behalf.
- Sole Legal Custody
According to California Family Code 3006, sole legal custody means that one of the parts will have the right to make all decisions regarding the welfare of the child. A common situation where the judge is likely to award sole legal custody is when the child has special needs. The sole custody will get assigned to the parent who is actively involved in the child’s Issues relating to their special needs. This occurs especially if the child’s need is severe and affects their daily life. Therefore, awarding sole custody to a parent with more knowledge to handle the special needs child will make the situation more manageable.
Other extreme situations may justify awarding sole legal custody to one parent. These situations are deemed severe because they are not usual with two average parents. The extreme situation arises when:
- There is a history of domestic violence against the other parent or instances of child abuse
- One parent suffers a serious drug abuse problem
- One parent has a severe mental or physical illness
- Different situations which make the noncustodial parents unfit to be involved in decision making on the child’s education and medical care
If you are hoping to get sole legal custody of your child, you need an attorney to help you prove the other parent’s incapability.
- Sole physical custody
Sole physical custody is the arrangement where children primarily live with one parent allowing them to reside in one home as opposed to moving back and forth to be with the other parent. However, on most occasions, the noncustodial parent will be awarded visitation rights, which may include sleepovers. Although this is not always what’s best for the children, the court will award sole physical custody when the situation calls for it.
A visitation agreement will be made to indicate visitation agreements. This document will include activities that will be done during visitation and geographical restrictions. This agreement will ensure you and your co-parent know your responsibility to avoid negligence and frustration for the child. There are several rules you have to follow if you get visitation rights.
- Supervised Visitation
If the noncustodial parent poses a threat to the child, an adult other than the custodial parent should be present during the visit. This will ensure the child’s safety. The supervised visitation will be imposed if the noncustodial parent physically, emotionally, or sexually abused the other parent or the child. Additionally, a parent with a history of drug abuse as well as those with severe mental conditions will only get supervised visits.
The supervised visitation will occur in specific areas and will be monitored, and the accompanying adult does not leave the child until the visit ends. When the noncustodial parent changes the behavior, which led to supervised visitation, the court may allow them to get unsupervised visitation.
- Unsupervised Visitation
This is a common type of visitation when one parent gets full physical custody. If you get unsupervised visitation, you have the opportunity to spend quality time with your child. However, there is a limitation on the amount of time they spend as well as the places they visit. These conditions are put in place with consideration to the child’s age.
- No Visitation
This is a court order that prevents the noncustodial parent from spending time with the children. You will be denied these rights if they believe that your contact with the child will have a negative physical, emotional, or psychological effect on them. You will not be allowed visitation if your parental rights get terminated, you did not exercise your visitation rights in the past, or you keep moving between homes. If your visitation rights are denied, you can restore them by following up through the court. You will be required to take anger management classes and make sure you are clean from drugs for six months. When all this is completed, you can get supervised visits.
The benefit of sole custody is allowing the children a sense of stability. Having one permanent resident will save them the hustle of moving their belongings every. This arrangement enables children to maintain a consistent schedule and maintain their social relationships. However, there are downsides to the sole custody arrangement. The noncustodial parent may feel like a stranger to their child. Spending most of the time with one parent can scar the child’s relationship with the noncustodial parent.
Factors Affecting the type of Child Custody Awarded in Court
In California, the responsibilities of childcare are governed by federal laws. The judge will determine the decision on child contact with the parent as well as their roles in the child's life after divorce, among other issues. The following factors strongly influence custody decisions:
Child’s Sex and Age
The court will consider the age of the child before determining the kind of custody arrangement to impose. Infants and toddlers are highly dependent on their mothers; therefore if the mother is fit, she is likely to get physical custody of these children. However, young children will require more bonding with both parents; thus, the father may get visitation rights.
Work Obligations of the Parents
Although the ability to financially provide for the children is a significant concern, you will be expected to cater to your child’s emotional and developmental needs. The court will consider the amount of time your job will allow you to spend with the child. Having a tight work schedule may disadvantage you. However, you can fight to get shared custody.
Child’s Preference
Older children will be involved in the custody decision making. Although it is not clear how their input affects the case, the judge may want to have an opinion of where the child would preferably be placed. Especially for physical custody of the child, the court will consider the relationship between you and your children. If the child is more comfortable with you, this may influence their decision. Additionally, a parent with a criminal record or history of drug abuse may be a red flag, thus compel the judge to award sole physical custody to the other parent.
Parents Health
Before deciding on the type of custody the judge will impose, the physical and mental health of the parents will be evaluated. If you have an anger management issue or a history of mental illness, the court would be reluctant to award you the child’s custody. It would help if you were both physically and mentally capable of tending to the child’s needs.
Parents Wishes
The wishes of the parent will be a matter of interest in decision making. Sometimes you are requesting for different types of custody where one wants to get sole custody, and the other wants it shared. The court will make the decision depending on the merits of the information you present to support your request.
Find a Family Law Attorney Near Me
It is not easy to predict the outcome of a child custody case. Sometimes your divorce may have been rough, making communication between you and your ex difficult. This will affect how you try to resolve matters concerning the custody of your children. If you are facing a child custody legal battle, it is helpful to seek legal representation from a reliable family law attorney. At the San Diego Family Law Lawyer, we are dedicated to assisting you to get the best custody arrangement for you and your child. If you are in San Diego, California, you can contact us today at 619-610-7425, and we will be happy to help you find a suitable custodial arrangement for your child.
