Tag Archives: California

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!

Do I have legal rights to visitation with my Grandchildren?

24 Sep

Unfortunately, family conflicts can stretch beyond the biological parents. Many times, grandparents are affected by disruption to the family unit as well. Visits with grandchildren get pushed aside, which can be quite upsetting to a loving grandparent. Fortunately, in some circumstances a grandparent can turn to the courts for help establishing regular visits with grandchildren. The court will then determine whether the visitation is in the best interests of the child.

The Family Code in California allows a grandparent to petition the court for visitation if certain circumstances exist. First, if a parent is deceased, the grandparent can petition for visitation as long as the child is not adopted by someone other than a stepparent or another grandparent. In fact, even if visitation is established prior to adoption by a third party parent, it automatically terminates upon this adoption.

More commonly, a grandparent can petition the court for visitation rights during a divorce proceeding or other family law matter in which child custody is at issue. Visitation rights may not be granted in this scenario, however, if doing so would conflict with a right of custody or visitation of a birth parent. Even though a petition for visitation under these circumstances often involves a contested divorce, there is a rebuttable presumption that grandparent visitation is not in the best interests of the child if the child’s divorcing parents agree that the grandparent should not be granted visitation.

A grandparent can also petition for visitation outside of a divorce or family law custody proceeding, if the birth parents are not married to each other, or are married but are living separately on a permanent or indefinite basis. In this situation, a court has the authority to order visitation to a grandparent if and only if it finds that there is a preexisting bond between grandparent and child such that visitation is in the child’s best interest and then balances that interest against the parents’ right to exercise parental authority. As with visitation petitions in divorce proceedings, there is a presumption that grandparent visitation is not in the child’s best interest when the parents agree that the grandparent should not have access to the child. Additionally, under circumstances where one parent has been awarded sole legal and physical custody of the child, there is a presumption that grandparent visitation is not in the best interest of the child when the custodial parent objects to the visitation.

Grandparents who seek visitation orders should be aware that doing so can raise support issues. Under California Family Code, a court that orders grandparent visitation may allocate visitation time between the two parents so as to not have an adverse impact on child support. A parent or grandparent may also be ordered to pay the other some amount of support for the child or grandchild, usually to cover necessities such as transportation and medical expenses.

Due to the involved nature of these proceedings, and potential financial effects, it is always best to consult with an attorney before taking a case to court.

How Will My Social Security Benefits be Affected by Divorce?

31 Aug

Many individuals considering divorce have concerns beyond simple property division, and worry about how to protect their social security benefits. Though social security benefits are similar to pension plans, which are dividable as community property in the State of California, Federal law overrides California law and keeps social security benefits from being divided as marital community property. Upon a divorce, social security benefits are designated as the separate property of the spouse who accrued the benefits throughout his or her employment.

However, current AND former spouses may qualify for derivative social security benefits, which are benefits earned through the current of former spouse’s employment. There is a limitation of the qualification for these benefits in that the marriage must have been at least of 10 years duration. Parties seeking divorce who have not quite been married ten years and wish to qualify for such benefits in the future may consider legal separation as an alternative. For more information on legal separation, please see “Legal Separation as an Alternative or Precursor to Divorce”.

Though social security benefits are mandated to be assigned as separate property by Federal law, under California dissolution law these benefits ARE considered income for the calculation of support. All sources of income are considered in California when looking into support awards. For this reason, if you are seeking a divorce and have questions about support and social security, it is important that you seek legal advice. Call today for your free consultation!