Archive | November, 2012

Child Custody Orders: An Overview

1 Nov

Have a custody issue that needs to go to court and unclear on terminology and nervous about the factors surrounding a court order? Read more for answers to common custody questions.

What do the terms “Legal” and “Physical” Custody mean, and what is the difference between the two?

Though it may not have impact on visitation time with the child, California law makes a distinction between sole legal custody and joint legal custody. “Sole legal custody” refers to one parent having the right to make decisions regarding the health, education and welfare of a child. Joint legal custody bestows this right on both parents, which at times requires parents to confer before making major decisions about the child’s health, education, or welfare.

Physical custody, on the other hand, involves parental rights of supervision of the child. Sole physical custody bestows that right on the parent with whom the child lives exclusively. The courts have decided that a parent with sole physical custody has the presumptive right to move with the child.

An order for joint physical custody, on the other hand, means simply that both parties will have significant periods of physical custody with the child. These orders are typically accompanied by a “timesharing arrangement” or “parenting plan” for the parties. These arrangements set the specific dates and times during which each parent will exercise custodial time. At times, you will see orders for “primary” physical custody. However common, this term is not defined by statute. It is instead used to describe unequal timesharing arrangements, which are also accompanied with a schedule allocating the dates and times during which each party is to exercise custodial time.

Where does “visitation” come in?

If a parent is awarded merely “visitation” he or she is deemed a “noncustodial” parent if the other parent is awarded and exercises sole physical custody. More commonly, many courts will still designate any custodial time as “visitation”, regardless of orders giving parties joint physical custody.

What factors will the Courts apply to determine custody?

In an average custody determination case, there are many factors the court uses to determine the resulting order. A list of the most common factors follows:

Status Quo

“Status quo” refers to the custodial schedule being exercised by the parents before the court became involved. The court will seek to maintain the status quo so long as it is an acceptable arrangement.

Frequent and Continuing Contact

California law and public policy put forth the goal that children be permitted frequent and continuing contact with both parents. This goal is used as a guideline in establishing custody orders so as not to allow the children to become estranged from either parent.

Best Interests of the Child

In any custody dispute, the primary goal of the court is to ensure that the best interests of the child are met through any resulting custody orders. The court will consider the child’s “health, safety, and welfare”, and take a broad view to get a firm grasp on a particular child’s best interest.

What factors are prohibited from consideration when the court makes custody determinations?

Though the law allows many factors to play a role in determining custody, there are several that should not be considered, in light of California law and public policy. The following factors are among the list of prohibited considerations:

Race of Parent

The race of either parent may not be used as a determining factor in custody cases. This rule applies even if there are concerns of effects of racial prejudice on the child.

Sexual Conduct or Preference of Parent

Typically, unless there is evidence that a parent’s sexual conduct has a significant and negative bearing on the welfare of the child, this factor cannot be used to form a basis for a custody order. This includes the sexual orientation of either parent, though historically orientation has been regarded as a factor in making a determination regarding the best interest of the child. Modernly, contemporary views on parental rights have made it so that a court is unlikely to use sexual orientation as a factor in awarding custody in any way.

Religious Practices

Unless there is strong evidence that the religious practices of a parent are detrimental to the child, religion is otherwise irrelevant and may not be used in a determination of the child’s best interest

Physical Handicap of Parent

Unlike the factors above, a parent’s physical handicap may be among the factors considered in making a custody determination. However, the court cannot base an order solely on a finding that one parent suffers from a physical handicap. The physical handicap would simply be among many factors weighing into the child’s overall best interest

Disparity in Parental Incomes

Finally, a court may not base a determination of custody on the incomes or wealth of the parents. In contrast, the court has noted that the remedy to an income disparity is to award sufficient child support to effectively narrow the disparity.

Will the court consider where my child wishes to live?

Courts do look to the preferences of a child when determining custody and visitation orders when the child has reached a “sufficient age and capacity to reason so as to form an intelligent preference.” The court decides whether a child will testify to his or her preferences on a case-by-case basis. The court must balance the desire to protect the child with the duty to consider the child’s wishes and the value of the child’s input in making custody decisions. Typically, when a child has reached the age of 14, the court will hear testimony from him or her. Please be aware that a child’s wishes do not override his or her own developmental and safety needs, and his or her preference remains secondary to a determination of best interest.

If you continue to have child custody questions or concerns, call for your free thirty minute consultation!