The California court (judge) has the power, anytime you file for divorce or thereafter, to make an order for the custody of a minor child. The court can create any order that is “necessary and proper” for the child’s welfare.
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Child custody is determined by a court for parents who are not able to agree on child custody arrangements and parenting times.
California Court Discretion
In exercising their discretion, the judge takes into consideration certain statutory policy considerations when making a child custody order. They are:
- Child’s Safety and Welfare: This is the court’s primary concern. Of particular concern, which is considered to be detrimental to that child, is the perpetration of child abuse or domestic violence in a household where a child resides.
- Frequent and Continuing Contact: Shared parenting with both parents is favored. Any appropriate custody or visitation award must take into account the codified policy to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the child’s best interest.
Sole Child Custody
- Exclusive or Sole Legal and Physical Child Custody: An exclusive custody order that gives one parent primary physical control of the child, with the right to make decisions regarding the child’s residence, health, education and welfare. The noncustodial parent has visitation rights as ordered by the court.
- Sole Physical Child Custody: The child resides with and is supervised by one parent, subject to the other parent’s visitation rights; but the custodial parent does not have sole decision-making power regarding other matters affecting the child.
- Sole Legal Child Custody: This means that one parent has the exclusive right and responsibility to make decisions relating to the child’s health, education and welfare; but unless exclusive physical custody is also granted, that parent does not have sole control over the child’s residence and supervision.
Joint Child Custody
- Joint Child Custody: Neither parent has sole legal or physical custody. Both parents have authority to control and supervise the child, and the child’s physical presence is shared.
- Joint Legal Child Custody: Both parents share the right and responsibility to make decisions regarding the child’s health, education and welfare.
- Joint Physical Child Custody: Both parents have significant periods of physical custody. Physical custody must be shared in such a way as to assure the child frequent and continuing contact with both parents. This does not mean that the child’s time must be equally divided with each parent. In other words, one parent can still be the primary caretaker.
Factors Considered In Making a Child Custody Awards
California Law makes clear that child custody and visitation determinations are to be made from the standpoint of the child’s best interest. In making the best interest determination, the court can consider any relevant” factors and the court must look to all the circumstances bearing on the best interest of the minor child. However, among all the relevant factors, trial courts must consider the following:
- Child’s Health, Safety, and Welfare: A best interest determination must take into account the child’s health, safety and welfare. This is a paramount policy concern.
- History Of Physical Abuse: The court must also consider any history of abuse by one parent or any other person seeking custody, the person seeking custody, or the current spouse. As a prerequisite to consideration of allegations of physical abuse, the court may require substantial independent corroboration including, but not limited to, written reports by law enforcement agencies, child protective services, or others.
- Commission of Violent Crimes: Certain violent crimes restrict custody or unconditional visitation awards:
- Registered Sex Offender or Child Abuse Conviction: Neither custody nor unsupervised visitation may be awarded to a parent or any other person who either (i) is required to be registered as a sex offender under CA Penal § 290 where the victim was a minor, or (ii) has been convicted of specified child abuse offenses (under CA Penal §§ 273a, 273d or 647.6), unless the court finds there is no significant risk to the child and states its reasons in writing or on the record.
- Child Conceived By Rape: Without exception, no person convicted of rape pursuant to CA Penal § 261 may be granted custody or visitation with respect to a child conceived by that act of rape.
- First Degree Murder of The Other Parent: Neither custody nor unsupervised visitation may be granted to a person convicted of first degree murder (CA Penal § 189) of the child’s other parent, unless the court finds there is no risk to the child’s health, safety and welfare and states its reasons in writing or on the record.
- History of Drug and Alcohol Abuse: In determining the child’s best interest, trial courts must also consider either parent’s habitual or continual illegal use of controlled substances (as defined in CA Health & Safety § 11000 et seq.) or continual abuse of alcohol. Before considering allegations of a parent’s drug or alcohol abuse, the court may require independent corroboration such as written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical and rehabilitation facilities, or other organizations providing drug and alcohol abuse services.
- Stability and Continuity Of Environment: Although not reduced to express statutory terms, a significant component of the best interest assessment is the policy goal of protecting a stable custody arrangement. There is a concern in maintaining continuity and stability in any custody arrangements and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker. This favors maintaining ongoing custody arrangements.
- Separation of Siblings: California policy affords strong protection to sibling relationships. Absent compelling circumstances, such as extraordinary emotional, medical or educational need, an order separating siblings between custodial households ordinarily will be reversed as detrimental to the children’s best interest.
- Child’s Wishes: The court must consider and give due weight to the wishes of children who are of sufficient age and capacity to reason so as to form an intelligent preference as to custody.
California Child Custody Order Procedure
The parents are encouraged to enter into a written stipulation (agreement) on child custody issues. If the parents cannot agree, child custody orders may be made at any time after the filing of an underlying divorce, paternity, or domestic violence action and may be modified at any time until the child turn eighteen. In contested cases, child custody order are most often made:
- At the time of the filing of the initial documents in a Temporary Restraining Order (TRO).
- After the filing for a hearing of an Order To Show Cause.
- At the time of trial.
California Child Custody Order Modification
Child custody orders may be modified at any time before they terminate as long as the party moving for the modification can show that there has been a change in circumstances affecting the welfare of the child(ren) since the last order. Such changes in circumstances include (but are by no means limited to):
- Change in residence of one of the parents. This often occurs when one parent files a motion for a move-away order.
- The desire of an older child to increase or decrease visitation.
- Evidence of abuse of a child.
- Alteration of the child’s school schedule.
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