If you are in the middle of a custody battle, it can help to know what a judge might consider when deciding who gets custody. The criteria that judges use in every custody case are outlined in the California Family Code. They look at many factors, including the child's age, the parent's well-being, and the child's emotional ties to each parent. The California Family Code also entails elements that the judge might not take into account, such as a parent's sex, gender expression, sexual orientation, or gender identity. Read on to learn more.
Child Custody in California
When a couple gets divorced in California, the judge will refer to Family Code, Division 8, to determine who will be granted custody of the children. This section outlines the general provisions that are considered. Ultimately, the child's best interest will serve as the deciding element in any case.
How much time each parent spends with their child will depend on both legal and physical custody, which will be decided upon once custody is established.
Physical Custody
In California, physical custody applies to a child's physical location, particularly the parent the child resides with. Physical custody arrangements in California could be primary, sole, or joint.
When one parent has sole legal custody of a child, that parent is responsible for the child's welfare, while the second parent has very limited or no interaction with the child at all.
When one partner has primary physical custody of a child, the other party is only allowed visitation privileges, such as once every other weekend.
If a child's parents have joint physical custody, that means the child will spend time at both of their homes on a schedule set by the court. School and work schedules sometimes make it challenging for families to divide time equally, even when they have physical custody. One parent could wind up seeing their child more frequently compared to the other.
Legal Custody
In California, the term "legal custody" refers to one parent's ability to decide what is best for their child's present and future. Legal custody could be sole or joint, meaning that either each or both parents make major decisions regarding their child's welfare, education, and health.
The Courts Make the Decisions Based on What is Best for the Child
There are a lot of considerations that go into the decisions that the courts make about child custody and visitation rights. However, what is considered to be in a child's best interest will be the main consideration. To guarantee that the child's interests are safeguarded, a judge could, in some instances, assign an attorney for the child. The following are among the most important factors the court considers when making custody decisions:
Child's Age
Family court judges don't follow any set rules based on the age of the child when making decisions about child custody. The majority of jurisdictions are shifting toward a system that prioritizes the child's best interests across all stages of development. However, in other jurisdictions, children are given more say in custody proceedings after reaching a particular age. In California, many courts believe that a child can help make these decisions when they are 14 or older.
It's crucial to remember that age and development aren't always related. However, certain general guidelines apply.
As per the theory of cognitive development by Jean Piaget, it is important to preserve the relationship between a child and both parents for children aged between 0 and 2, who are still in the sensorimotor phase. There should be regular visits and little time spent apart from their parents.
Children between the ages of 3 and 7, who are in the preoperational phase, tolerate parental separation better, but they still require stability, structure, and regular interaction with their parents.
Preteens between the ages of 8 and 11, who are currently in the concrete operational phase of their development, will often respond favorably to both regular visitations as well as some time spent apart from their parents. Based on the child's extracurriculars and academics, time spent with one parent over the other could be better.
By the time they are 12, most kids are on their own and trying to find who they are apart from their parents. When deciding on a custody arrangement, judges advise parents to be adaptable, pay attention to the needs of their older children, and also seek their opinion.
How Well Parents Can Provide for Their Children
When deciding who gets custody of the children, judges take into account both the income of each parent as well as whether they can follow a parenting plan. If a parent has the support of their family, especially when the other parent doesn't, it helps their case for sole or primary custody. Grandparents or other family members who can help out financially or watch the kids are especially helpful in this situation.
The court will work with the parents to make sure they spend as much time as possible with their kids unless it can be shown that doing so would hurt them. Partial physical child custody could be granted during the summer, for instance, if one parent's work schedule prevents them from picking up their child from school and no other family members can help out. Throughout most of the year, the child can live with the parent who is in the best position to provide for him or her.
Relationship Between the Children and Both Parents
Again, there are no hard and fast rules; only general principles can be applied when evaluating the child's relationship with each parent. Judges are tasked with weighing in on how healthy the relationships are.
Judges are more likely to approve of an unequal physical custody agreement in favor of one parent when the child has a very strong bond with that parent and cannot bear to be separated from them.
But a forensic child psychotherapist or another mental health professional could order more frequent custody changes and family counseling if they think the relationship is detrimental to the child's best interests.
The court will also take into account the opinions of any older children able to articulate a strong affinity for one party over another. Children who openly object to staying with just one parent could make compelling witnesses. However, a parent needs to show that they can build and maintain a physical and psychological environment in which their children can flourish. The court's considerations are not limited to the children's preferences.
The Willingness Of Parents To Support One Another In Fostering Their Relationships With Their Children
The judge will look at how well the parents have worked together or not in the past when it comes to the parenting plan. For example, judges may be interested in whether or not one parent causes problems for the other during visitation.
The court will also look for proof that both parents are willing to work toward maintaining a good relationship with their children. Does one parent criticize another in the presence of the children? Does one parent usually start fights when they drop off or pick up the kids?
In most cases, the parent who is willing to cooperate often wins custody. Judges don't like it when one parent tries to keep their kids from spending time with the other parent or can't stop hurting the relationship between the kids and the other parent.
Relationships Between Parents and Their Children Before Divorce
The judge will consider each parent's track record of spending time with or providing for the child. After a divorce, it's not unusual for parents who have not been particularly involved in their children's lives to suddenly feel strongly motivated to do so.
Most of the time, this desire is legitimate, and the court will take that into consideration—especially if that parent was already committed to raising their children during the split. However, the judges will take their time assessing the circumstances to ensure that one parent isn't just trying to outdo the other.
History of Neglect or Abuse
Without a doubt, a court will restrict a parent's contact and custody rights if there is proof that he/she abused or neglected his/her children. If courts do grant visitation rights in these situations, they're usually supervised and regulated in a way that protects the minor from future physical or emotional harm.
Domestic violence against another parent would often factor into custody decisions, especially if the minors had witnessed the attack.
The Child's Need for Stability and Consistency
When it comes to children, courts usually want to keep things the same because most of them think that making more changes during a divorce, which is already hard on the kids, is usually detrimental to them. Judges could consider the minor's ties to the existing community and school, among other considerations.
Therefore, if you're claiming that everything is going according to plan, you have an advantage over your partner, who is advocating for a significant alteration to the existing visitation or custody schedule.
A child's need for continuity and stability after a divorce is affected by several other things that the courts look at.
The Living Situation of Each Parent
Concerning custody arrangements, the question of who stays in the family home poses a kind of chicken-and-egg problem. The court often grants residence to the parent who has primary physical custody of the minors, since this will ensure that the kids' lives are stable and consistent. In other instances, the court grants custodial rights to the parent who will remain in the family home for the same purpose.
If you seek shared or primary custody, you'll have to demonstrate that your current living situation will be a decent place for your loved ones to spend a lot of time, whether you are the "out-parent" or neither you nor your ex-partner can retain the residence after divorce. If you're trying to get back on your feet after a divorce and are staying in your close friend's guest room, you shouldn't have such high hopes.
However, most courts will work to avoid punishing parents who cannot afford a good home with a child-friendly layout. It's also important to note that, in circumstances where the children will see both parents occasionally, the child support rules in many jurisdictions permit courts to take the disparities in the standard of living between the parents' residences into account when determining child support.
The Distance Between the Parents' Homes
When making a custody determination, the court could also consider how far away your residence is from the other parents. The court is more likely to determine a time-sharing schedule that offers both parents substantial time with the children, depending on how closely they reside with one another. When both parents live in the same area, their children can participate in the same social, sporting, and religious events regardless of which parent they're living with on any given day.
As kids get older and become closer to their friends, the distance between them becomes more important. It is also less tiring for the minors to travel back and forth between their parents, who do not reside far apart.
Children's Preferences
Children could have a say in where they reside and the amount of time they want to spend with each parent, depending on the children's maturity and the jurisdiction. Alternatively, a custody evaluator could notify judges of the opinions of the children.
Judges could listen to the opinions of younger children when it's appropriate. But in some jurisdictions, the preferences of older children have to be taken into account when making custody decisions. In other jurisdictions, the standards aren't as much based on the minor's age as they are on their ability to make a well-reasoned argument and convey that argument. It doesn't apply to factors like which parent would allow them to stay up late. Some jurisdictions do not allow minors to have any say in child custody proceedings.
Location of the Child's Siblings
In most cases, the court will favor maintaining sibling relationships. When parents want to separate their children under a custody arrangement, they should make a compelling argument to the judge that focuses on the best interests of the children. However, in exceptional circumstances, the court could decide to split up the siblings.
If a court determines that one parent is better suited than the other to care for the demands of the abused child, a separate custody arrangement for the children could be ordered if the minor's safety is in doubt, such as when a sibling is abusing or bullying the child. In these situations, it is common to seek the advice of a therapist, psychologist, psychiatrist, or any other mental health professional.
In cases where an older sibling has a hard time getting along with a parent, the court could also be compelled to separate the minor from the other siblings based on the child's preference. However, if it can be proven that one household is better placed for the child's welfare than the other, then the courts will permit it. Judges do not give custody merely based on personal preferences.
Visitation Orders
Parents are urged to draft a visitation schedule that fits their schedule and abides by the court-established custody arrangement. However, the court can step in and establish a visitation plan if the parents are unable to decide how they will share their time with their children.
A court could issue one of four different visitation orders to a parent. They include:
Schedule-Based Visitation
Parents and the court often work together to make a visitation schedule that says when and how long the child will spend with each parent. This helps the child and parents avoid arguments and confusion. The visitation plan can take into account holidays, vacations, special events, and other important dates for the families.
Reasonable Visitation
There is no requirement for specific dates or times for the minor to spend with each parent in a reasonable visitation order. These instructions are often vague, allowing the parents to resolve the issue amicably. This kind of visitation schedule could be successful if the parents interact well, are adaptable, and have good communication. But having such a flexible schedule could cause fights or misunderstandings between the parents, and the child could suffer as a result.
Supervised Visitation
This applies when a child's safety and welfare necessitate that visits and interactions with the other parent be overseen by you, a professional organization, or another adult. Supervised visitations are occasionally used in situations where a parent and a child need time to get to know each other better, such as when a parent hasn't seen the minor in a while and has to slowly familiarize themselves.
No Visitation
This alternative is adopted when visits with a parent, even with monitoring, would be emotionally or physically detrimental to the minor. When this happens, it's not in the child's best interest for the parent to keep talking to them.
Find a San Diego Child Custody Attorney Near Me
Custody disputes can be difficult to navigate. Even if the child's other parent seems to be open to negotiating a joint custody arrangement, they could reverse their decision at any time. Our attorneys at the San Diego Family Law Attorney can be ideal partners during the negotiations. We can assist you in making decisions that will safeguard your interests and the interests of your child/children. Contact us at 619-610-7425.
