Let's face it, divorce is rarely, if ever, a pleasant experience, and no matter how stressful and devastating it can be for the parents involved, it can be exponentially harder for the children involved. Especially when custody battles are drawn out over a long period of time.
California's child custody laws can be confusing, frustrating and overwhelming for those going through a divorce. Understanding these laws and procedures, and having the proper, professional representation can help make this complicated process smoother thereby easing the tension between everyone involved.
The Child’s Best Interest
Child custody refers to the rights and responsibilities between parents taking care of their children. A judge will make the final decision on child custody. If both parents can agree on an arrangement or parenting plan, the judge will typically approve. However, if they do not agree, the judge will make a final decision in court. Additionally, parents will need to visit a mediator before the judge will make their decision.
When a court makes any decision about a child’s custody, they use the best interest of the child standard. This means that whatever arrangement the court decides upon, will be in the child’s best interest. In California, the court determines a child’s best interest by considering:
The age of the child,
The health of the child,
The emotional ties between the parents and the child,
The ability of the parents to care for the child,
Any history of family violence or substance abuse, and
The child’s ties to school, home, and his or her community.
Types of Custody
There are two types of child custody orders in California: Legal custody and physical custody.
Legal custody refers to the parent who makes decisions regarding the education, health care and welfare for the child or children involved.
Legal custody can be joint or sole. In joint legal custody, both parents are responsible for making important decisions for the child’s health care, welfare, and education. On the other hand, sole legal custody is where only one parent is required to take on those responsibilities.
Physical custody refers to whom the child or children will actually live with.
Physical custody can be joint or sole as well. Joint physical custody refers to an arrangement where the child lives with both parents. While joint custody might be interpreted as half-and-half or equal time with both parents, it usually doesn't work out that way.
Typically, one parent is designated the Primary Custodial Parent. This parent is the one in which the child will live with most of the time. Sole physical custody refers to an arrangement where the child lives with one parent and the other parent will usually have visitation rights. Additionally, it’s important to note that even when sole physical custody is granted, joint legal custody can still be awarded.
Parents will have to create a visitation plan detailing how they will share time with their child. The parent who spends less than half of the time with the child will have visitation. The court will decide which type of visitation will be in the child’s best interest. Typically, visitation can be:
Scheduled visitation: In this case, visitation schedules would include holidays, birthdays, vacations and weekend visitation, or even weekend custody.
Reasonable visitation: This order has no court-mandated schedule. It allows for parents to work out a visitation schedule on their own. Though this may seem like the best option, if the peace between the parents cannot be kept, the child will suffer the effects.
Supervised visitation: If the child’s safety and well-being are in question when they visit the other parent, the court can require supervision by a parent, another adult, or a professional agency.
No visitation: If the child's safety is truly in danger, be it physical, mental or emotional, the court can order that no visitation be granted.
Protect You & Your Family’s Best Interest
While there are many factors to consider when going through a child custody case, the last thing any parent wants is for their child to suffer. At Embry Family Law P.C., we want to ensure that you and your child’s rights are protected. We will assist you and your family through this difficult time by making the custody process as smooth and peaceful as possible.
For more information and advice, please contact us at (619) 485-6476.