Child custody has many components. Some of the legal terms used to further clarify child custody include:
- Joint child custody;
- Sole legal custody; and,
- Sole physical custody.
Joint Child Custody
Joint child custody or joint legal and physical custody, is the “favored” arrangements that courts would like for parents to have with their children. A court can address child custody should the parents be unable to do so. A judge, who has wide discretion in drafting a parenting plan, will order one that is in a the “best interests of the child.”
Sole Physical Child Custody
A parent who is awarded sole physical custody has the exclusive right to physically care for their child. The other parent, non-custodial parent, is awarded visitation. The court must consider the best interests of the child before it awards sole physical custody to one parent. Once the court awards sole physical custody to one parent, that parent has the right to control the physical care of the child without the need to consult the other parent.
Sole Legal Child Custody
A parent with sole legal custody holds exclusive rights to make critical decisions that affect the child’s safety, health and welfare. The court must consider the best interests of the child before it awards sole legal custody to one parent. Once sole legal custody is ordered to one parent, that parent has the right to make all other decisions over the child’s life, without the other parent’s approval.
California Child Custody
Under California child custody laws , both parents have a right to enjoy frequent and continuing contact with their children. This means that both parents are to have contact with their children unless it is not in the best interests of the children. The best interests of the children are a concern when children suffer from or are affected by child abuse, child endangerment, domestic violence, or substance abuse.
Visitation and Parenting Time
Under California law, the custodial parent cannot interfere with the non-custodial parent’s visitation; also known as parenting time. A California Family Court takes into consideration interference and uncooperative parenting by one parent when they make custody decisions. Interference often occurs when the custodial parent:
- Plans activities with the children during the non-custodial parent’s visitation time;
- Refuses to follow court orders to pick up and drop off children or delays the exchange of the children to the non-custodial parent;
- Alienates the children by encouraging them to not see the non-custodial parent;
- Uses the children as messengers by discussing with them divorce or custody proceedings to make the non-custodial parent’s time less enjoyable;
- Makes disparaging remarks about the non-custodial parent to influence how the children’s feel or view the non-custodial parent;
- Makes false allegations about the non-custodial parent that they have committed child abuse, child neglect, or domestic violence against the child, sibling, or the custodial parent;
- Refuses to co-parent with the non-custodial parent;
- Violates joint legal custody rights by not consulting with the non-custodial parent or by not obtaining their consent on important decisions involving the children.
California Joint Legal Child Custody Order
When you get divorced, you will receive a California Joint Legal Child Custody Order specifying which parent will make decisions regarding your children’s welfare and upbringing. Often, parents work out these arrangements between themselves, either completely voluntarily or with the assistance of their attorneys or a mediator. When they are unable to reach a decision, however, or when unmarried parents are unable to agree on who will have legal custody of their children, the court may intervene and make a decision based on the children’s best interests.
A California Joint Legal Child Custody Order is an order made by the court where parents share equal legal custody of their children. This means that parents participate equally in making decisions about the child’s upbringing and welfare.
Example of a California Joint Legal Child Custody Order
Mother and Father are divorced, and agree to a true joint custody arrangement over their children. Mother and Father will work together to reach an agreement on all major issues concerning the welfare and upbringing of their children. The court will adopt this agreement to create a California Joint Legal Child Custody Order.
The Effects of a California Joint Legal Child Custody Order
Both parents are entitled to make decisions regarding the welfare and upbringing of their children. Neither parent is to act “unilaterally” in making a decision unless an emergency exists. Mother and Father need to consult one another in making educational choices, religious activities, and medical care. Again, either parent can act alone should an emergency exist but should notify the other parent of the emergency as soon as reasonably possible.
California Child Custody Additional Provisions
California Child Custody Additional Provisions are very important consideration that you should address with your original child custody order. The child custody agreement that you and the other parent enter into will have will lay out how you, the other parent, and your child will be interacting on a daily basis. You and the other parent should take the time to ensure that both of you completely understand how both of you intend to raise your child. Including specific provisions in your custody agreement is a good way to thoroughly cover every aspect of your responsibilities as co-parents.
Drafting California Child Custody Additional Provisions
Before you begin to draft your California Child Custody Additional Provisions, take the time to think about the things that are important to you and your child and what aspects of custody you expect both parents to respect. Your child custody order should include at least the following provisions:
- The type of legal custody that will be implemented. Legal custody refers to the decisions making responsibilities for the child. These responsibilities can be given to one or both parents.
- The type of physical custody that will be implemented. Physical custody refers to the day-to-day care taking responsibilities for the child. These responsibilities can be given to one or both parents.
- A method to address making modifications to the custody agreement if circumstances are to change in the future and the custody agreement needs to be changed.
- A basic visitation schedule outlining the time the child will spend with each parent.
- Which school the child will attend. Educational choices can be influenced by other factors and should be carefully considered.
- Any religious affiliation that the child will be exposed to. Parents may have different opinions about what, if any religion, they want their child to practice.
California Child Custody Modification
California child custody modification is undertaken after a judge makes a custody and visitation order and one parents wants to change the order.
There are many good reasons why a parent may want to request a California child custody modification. As children get older, for example, their needs, interests, and activities change. And as each of the parents moves on with his or her separate life, new partners, new jobs, or new homes can all mean that there is a need for a California child custody modification.
A request to modify child custody (the parenting plan) is undertaken after entry of a custody and visitation order. Parenting plans are often changed as children get older and their needs, interests, and activities change. Custody orders can be modified when there is a “change in circumstances.” This can happen when a parents moves, advances in their career, or remarries. To request a modification, you must show that there has been a “change in circumstances” since the final custody order was made. This means that there has been a significant change that requires a new visitation arrangement for the best interests of the children. A significant change is required because it is best for children to have stable and consistent custody arrangements with their parents. Final custody orders should only be changed if it would be best for the children.
One Parent Dies
California child custody modification is not required should the custodial parent pass-away – the surviving parent immediately becomes entitled to sole custody of a minor child and there is no need to modify child custody.
The surviving parent can be denied custody if, it is proved by clear and convincing evidence, that such custody would not be in the child’s best interests and would be detrimental to the child. There is no California child custody modification issue when the custodial parent’s dies since there is now only one parent to assert parental rights. Any original custody order is moot. Likewise, a child custody order becomes non-modifiable with the noncustodial parent dies. However, this does not prevent a third party from commencing an independent action for a California child custody modification order for a guardianship or grandparents visitation.
The Uniform Child Custody Jurisdiction and Enforcement Act the Federal Parental Kidnapping Prevention Act are used to determine the proper forum for custody and visitation disputes when addressing the interests of competing states or countries. Jurisdictional requirements of both of these acts must be satisfied whenever a California court is called upon to modify a child custody/visitation order.
A California court has continuing jurisdiction if the parties were California residents when a California court made the original custody or visitation determination and the parties remain California residents when a modification is sought.
Jurisdictional issues arise under Uniform Child Custody Jurisdiction and Enforcement Act when either a California court is asked to modify an out-of-state custody or visitation order; or, a California court is asked to modify its own custody or visitation order after a party has moved away. Generally, the state that made the initial child custody determination will have exclusive, continuing jurisdiction to modify the order. There cannot be concurrent or simultaneous jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.
A California court may not modify another state’s custody or visitation order unless California has jurisdiction to make an initial custody determination, California is the home state, or there is a significant connection to the state. In addition, the other state court must determines that it no longer has exclusive, continuing jurisdiction because neither the child, nor the child and a parent, nor the child and a “person acting as a parent,” has a “significant connection” with that state and “substantial evidence” is no longer available in that state concerning the child’s care, protection, training and personal relationships, or a California court would be a “more convenient forum” to entertain the proceeding; or a California court or the other state court determines that the child, child’s parents and any ‘person acting as a parent” do not presently reside in the other state.
If the California court has notice that a custody litigation has been commenced in another state having jurisdiction substantially in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, the California court must stay its proceeding and communicate with the other state court to resolve the jurisdictional conflict.
California Child Custody Modification Requires Change in Circumstances
Once there is a final determination on custody, a parent seeking to modify a permanent custody order can do so only upon a showing of a significant change of circumstances so affecting the child that modification is essential to the child’s welfare. Without such a showing, any modification would be an abuse of discretion as denying the child the benefits of a stable home environment and thus would not be in the best interests of the child.
The requirement to prove a change in circumstances furthers the goal of preserving the need for continuity and stability in custody arrangements, unless some significant change in circumstances indicates a different arrangement would be in the child’s best interest.
The changed circumstances requirement is used only after a final or permanent custody adjudication. The ordinary best interest standard, without the additional changed circumstances burden of proof, applies when the court makes an initial custody adjudication and when it adjudicates custody following any temporary or interim custody order.
The parent filing for a California child custody modification has the burden of persuasion to show that there has been a change in circumstance and that a modification would be in the child’s best interests. The parent requesting a modification must persuade a California court that the modification is not only in the child’s best interests but that there is sufficient evidence of a substantial change in circumstances to warrant a modification.
A California child custody modification may be undertaken should the noncustodial parent decide to move. A noncustodial parent’s relocation often results in a visitation schedule that is less frequent but longer in duration. Should the custodial parent decide to relocate, the court considering the move away order will require the noncustodial parent to prove that the change in circumstances is a detriment which often means that visitation is not feasible. A California court has the discretion in such cases to order the custodial move-away parent to bear the travel costs for visitation.
Although a custodial parent generally has the presumptive right to relocate with the children, the noncustodial parent can argue that the child’s stability does not necessarily with either parent but is with their community, the child’s friends, activities and ties with the community. Should a California judge be so convinced, the court could order a change in physical custody so that the children can remain in their existing community.
Considering the Child’s Preference
As with an initial custody determination, the court is required to consider and give due weight to the preferences of a child, of a sufficient age and capacity to form an intelligent preference, regarding custody. “Sufficient age and capacity” can vary but courts and while most courts are receptive to a teenage child, some courts will listen to children as young as seven or eight years of age.
Parent’s Change In Economic Circumstances
One parent’s change in economic or financial condition is not an issue to be considered for modification of child custody or visitation. Any economic advantage one parent may have or the comparative incomes have no bearing on a child custody determination or modification.
California Child Custody Evaluations
A child custody evaluation, also known as a “730 Evaluation,” may be court-ordered and is used to determine the mental health of a child or the parenting practices of one or both parents. Additionally, either party in a Dissolution case may request a child custody evaluation by agreement and with the filing of a “Stipulation.” Custody and visitation orders are often based on the findings of a child custody evaluation.
A child custody evaluation should be considered if your child is mature and has expressed their desires as to which parent they wish to primarily reside, or should there be a concern that one parent cannot provide a stable or safe living situation for a child. A parent’s parental rights may be affected for any of the following reasons:
- Criminal convictions.
- Drug or alcohol addiction
- Child abuse.
- Mental health problems.
- Relocation by one parent.
- Parenting practices that may negatively impact a child.
A child custody evaluation can be conducted by any of the following qualified mental health professionals:
- Qualified social workers
- Marriage and Family Therapists.
California Evidence Code § 730 provides that a court can appoint a mental health professional to conduct a child custody evaluation or psychological evaluation.
California Family Code § 3111 provides that an evaluator may be appointed in any contested custody or visitation proceeding where the court determines it is the best interests of the child.
Family Code § 3118 requires a child custody evaluation in any contested proceeding in which the court has appointed a custody evaluator and the court determines that there is a serious allegation of child sexual abuse. An child custody evaluation is generally required where one parent wishes to relocate with the children. Whatever the type of evaluation, your attorney will play a vital role in not only choosing an evaluator but also in presenting the issues to the evaluator.
When the child custody evaluation is initiated, all parties will have to sign forms to release information so that the evaluator can have access to school, medical, and mental health records of the parties and children. The parties will each have to complete an extensive intake questionnaire, which requests information as to family history, the parents’ perceptions and concerns, and the parenting plan desired. Your attorney will play an active role in presenting an appropriate parenting plan and in framing and prioritizing the relevant issues and facts for the evaluator. At a minimum, counsel should provide the evaluator with copies of all relevant pleadings, and a letter framing the client’s concerns and briefly summarizing the relevant facts.
At times, it may be useful to retain a mental health professional to evaluate a parent. For example, if it is alleged that the client suffers from psychopathology, a private evaluation may address that issue and provide input to the court-appointed evaluator.
Child Custody Mediation
Child custody mediation is a process which can help parents to make decisions about how they will share custody of their children. The mediator meets with the parents together or individually to ask questions to develop an understanding of the family history. In cases of domestic violence, you have the right to meet with the mediator separately and you can bring a support person to your mediation.
During child custody mediation, the mediator and parents will identify the most important issues that need to be resolved. The mediator helps the parents to focus on developing a parenting plan that is in the best interest of their children. The mediation may address legal custody, physical custody, parenting plans, holiday and vacation schedules, transportation, and other areas that relate to the needs of the children.
Court-ordered child custody mediation sessions can last for different amounts of time in each court. Some courts are only able to offer parents 1 hour appointments. Others can work with parents during 1 or more appointments that last 2 to 3 hours each. Because each court has different resources available to help parents, this is an important question to ask when you set up your mediation appointment.
If one or both parents have lawyers, the lawyer may be involved in the child custody mediation process – this depends on local rules. If you have a lawyer, talk to him or her about whether you want him or her involved in the child custody mediation process and, if so, talk to the mediator about this. Some courts may not allow your lawyer in mediation, so ask your attorney or the mediator about the rules in your court.
A mediator most often has a graduate degree; is familiar with the how the family court system works; and, may also have information about community services that may be helpful to you. Although many mediators are experienced in counseling, mediation is not counseling. A mediator meets with both parents and helps them try to agree on a plan that is best for their children. The mediator’s job is to: listen to both parents, be neutral, and to suggest options for any disagreements.
Child Custody Mediation Guidelines
A parent must be very careful in their conduct and in what they say at child custody mediation since, the mediator’s report could contain information about a parent’s conduct during mediation. In general, you should treat the other parent with respect; listen and try to find real solutions; and put the children first by considering their needs and what they can handle.
In some local courts, mediators make recommendations to the judge about child custody and visitation. If you and the other parent cannot agree on a parenting plan through mediation, the mediator is asked to give the court a written recommendation. This recommendation will contain the mediator’s opinion about what parenting arrangement will be in your children’s best interest. Both of you will also get a copy of the recommendation.
In other courts, mediation is confidential and the mediators do not make a recommendation to the court about child custody and visitation. If the parents agree on any issues, the mediator may provide the court with a written summary that will include the issues the parents agree on.
Mediation and Domestic Violence
Usually, mediators interview both sides together. But if there has been domestic violence or there is a restraining order between the parents or other concerns about meeting together, the parents may ask to meet with the mediator separately. Sometimes, even when there is no domestic violence, the mediator may decide it is more appropriate and helpful to meet separately with each parent.
Mediators will interview the children if it will help the parents to develop a parenting plan that is best for the children. Mediators are trained professionals and know how to interview children without making them choose between their parents or putting them in the middle.
If one or both parents are not comfortable discussing child custody issues in English, they may ask to bring an interpreter to mediation.
You should get information from your mediator or the Family Court Services office about confidentiality and the child custody mediation process. Again, your attorney may have this information. In some courts, mediators make “recommendations” about child custody to the judge when the parents do not reach an agreement in mediation. The mediator may include what you say in mediation in the report, which is sent only to the judge, to the other parent, and to his or her lawyer. In other courts, information from the mediation would not be shared with the judge.
If a mediator suspects child abuse or has concerns about the physical safety of the children, he or she may need to report this to child protective services or the court.
Reaching an Agreement
If you reach an agreement on your parenting plan, the mediator will usually prepare a written agreement for both parents to sign. After which it is presented to a judge for his signature. If you cannot reach an agreement in mediation, you will attend a court hearing or settlement conference with the judge to resolve issues. The judge may order a child custody evaluation by a mental health professional to get more information before making a decision. In some courts, the judge may ask the mediator to make a recommendation.
Child Custody Evaluations
If the parents did not come to an agreement about all of their custody and visitation issues during mediation, the judge may order a custody evaluation. A custody evaluation generally takes up to 60 days. And, usually, the parents must pay a fee for this service. The evaluator is a specially trained psychologist or other mental health professional.
The tiered mediation model consists of three tiers. In Tier I, the parties will work with a mediator in an effort to come to an agreement in their case. That mediation will be confidential and not result in any recommendation or report to the court. For those who are unable to reach agreement, the court could order further services by referral to Tier II or Tier III. In Tier II, a court-connected professional would gather information and submit a report, without recommendations, to the court. Tier III serves as a traditional child custody recommending counseling service, in which a report, with recommendations, would be provided to the court. Cases will initially be referred to Tier I, and the judicial officer will have the discretion to refer cases to subsequent tiers or child custody evaluation as needed.
Confidential Mediation (Tier I)
Tier I referrals provide confidential mediation for families who have been unable to reach an agreement regarding custody, parenting time, and visitation before their mediation appointment. The mediator will not issue a recommendation to the court, but shall report the parties’ agreement to the court.
- Nothing prohibits the court from ordering a referral of the parties to expedited or emergency child custody recommending counseling (Tier III) without first attending confidential mediation (Tier I).
- Children shall not participate in Tier I unless directed by the court, Family Court Services (FCS), or the child custody professional (Family Code section 3180).
- Tier I is confidential except that the mediator may report any suspected child abuse, elder abuse, and/or if someone is a danger to themselves or others pursuant to Penal Code section 11166.
Information Gathering (Tier II)
Tier II referrals are for the purpose of gathering information. A judicial officer has the discretion to include any specific areas of inquiry in a Tier II referral including, but not limited to, contact with law enforcement, contact with Child Protective Services, and interviews with the child(ren) or other collateral contacts. A Tier II summary report shall be submitted to the court and will not include any recommendations from the child custody professional. Tier II sessions are not confidential.
Child Custody Recommending Counseling (Tier III)
Tier III referrals are child custody recommending counseling sessions. If an agreement is reached, the child custody recommending counselor will document the agreement. Otherwise, the professional will prepare a summary report and submit a recommendation to the court. Tier III sessions are not confidential.
Types of Third Party Child Custody
Third party child custody can be granted to a non-parent who is seeking guardianship of a child. In some cases, the “third party” or relative seeking visitation or custody has been acting as a parent for an extended period of time and seeks to continue this de facto parental relationship. If the child has become very attached to the person and would suffer a significant loss if the visitation or custody arrangement were terminated, that party may seek to be recognized as a third parent, entitled to custody or visitation. In this situation, the petitioning party is not seeking custody or visitation as a third party, but recognition as a parent.
California Non-parent Child Custody
Custody is granted to those who are not the child’s parents only under certain circumstances and through specific procedures. There are two primary ways to file for custody of a child that is biologically not your own: 1) guardianship, and 2) non-parent custody.
Applying for Guardianship in Lieu of Non-parent Custody
The first method for getting non-parent custody of a child involves applying for guardianship. With “consent guardianship,” parents give written consent to non-parents to give them custody. This is the easiest way to get custody of a child that isn’t yours. In this form of custody, both parents must agree to give custody to the non-parents. Consent guardianship is not possible if one parent does not agree to give consent. If mutual consent cannot or is not granted, non-parents can file for non-parent custody.
Non-parent Third Party Child Custody Petition
The second method for getting custody is called non-parent custody, which is also called “in loco parentis” custody. “In loco parentis” means “in place of the parents” or “instead of the parents.” In this case, non-parents file with the court where the child currently or permanently resides. The non-parental filing will need to detail the cause for the petition, and will involve a formal notification to the child’s parents (if living), guardians, and various other interested parties.
To gain non-parent custody, the non-parent(s) must generally be able to show the following:
- That they have a long-standing relationship with the child, and are fully capable of substituting for the parents in caring for the child;
- That it is not only not in the child’s best interests but also not to his detriment to be with the non-custody parent; and,
- That either one of the child’s legal parents is deceased, the child’s parents are not married at the time of the filing, or the child’s parents are legally separated or are divorcing at the time of the filing.
Courts take the rights of biological parents seriously, and the non-parents filing for custody must convincingly prove that it is in the child’s best interests to be removed from the care of their biological parents to be placed with the non-parent. These stringent rules apply not only to custody battles, but also to non-parental visitation rights.
Non-parent Visitation Rights
Getting visitation rights for a child that is not your own is also very difficult. This is true even if you are the child’s grandparent. To better understand the rules here, consider the case of Troxel v. Granville, where the U.S. Supreme court made a determination regarding the visitation rights of grandparents.
In the case, an unmarried couple, mother Tommie Granville and Brad Troxel, had two daughters. When the parents’ relationship fell apart, Brad Troxel continued to take his daughters to visit his parents. Later, Brad Troxel committed suicide, but his parents wanted to continue to visit with the girls. Tommie Granville married, and her new husband adopted the girls. Tommie Granville tried to limit Brad Troxels’ parents (the grandparents) visitation rights. The grandparents filed suit under the Washington State Statute that allowed non-parental third parties to file suit to compel visitation.
The case moved through the lower courts, all the way to the U.S. Supreme Court, which found that the Washington state law should have required that those filing for visitation prove that there was some harm to the children if visitation was not allowed. While the court had six different opinions issued with its decision, the case was considered widely as a blow to the rights of non-parents applying for visitation rights of children.
As a general matter, Troxel v. Granville meant that “intact” families consisting of married parents and children had the right to make decisions regarding visitation rights of grandparents and other non-parents. To be granted visitation and/or custody, clear and convincing evidence must be presented by the non-parent proving harm to children if visitation is not allowed. The burden lies squarely with those filing the petition to prove the detriment to the child if visitation is denied.
So, this means that if you want to get non- parent custody of a child, you have to petition the family court where the child lives and show clear and convincing proof that the child should be put into your custody or that you should be granted visitation. Unless you have solid proof, in the form of witness statements and other evidence, you are very unlikely to be given custody of a non-biological child. However, if you have been raising the child and are acting as a substitute parent or you have some other reason why it would be detrimental to the child, you chances are increased.
Why Parents Lose Custody Rights
If you’re going through a divorce with children, you may have a lot of questions about custody. Generally, parents hold a preferred position under the law, which means a court will presume that the parent is the most fit and proper person to raise the child. Occasionally, someone can challenge this presumption by submitting evidence that the parent has neglected, abused, abandoned, or otherwise failed to care for the child. But even if a court decides that one parent is unfit, a judge will usually defer to the other parent’s rights.
Determining Third-Party Child Custody
The same factors that apply in a traditional custody case apply when deciding in favor of a third party child custody — a judge will try to find a scenario that supports the child’s best interests. Although a child’s best interests are usually served by keeping the child in the family home—with the biological parents—parents can lose their rights. Once the parental presumption is rebutted, a court will turn to the “best interests of the child” standard to resolve the custody dispute between the parent and third party.
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