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A Very Emotional Process
In the grand scheme of things, child custody is frequently the most emotionally draining detail of any family legal case. While one can certainly regain lost assets, it is impossible to retrieve lost time with your kids. You will need to get a Certified Family Law Specialist with extensive family law experience to get your case going. The best attorney for the job will have successfully dealt with thousands of custody cases and can use their experience to assist you in getting the best results possible.
The Child Custody Framework: A Deeper Understanding
The subject of child custody can be sadly convoluted, whether it is in the arena of a legal separation, a divorce, domestic abuse or child abuse allegations, or move-away circumstance. Parenting rights and the rights of children clearly hold top priority, but the state you reside in also has a legal interest in the welfare of children. In some cases, this fact could increase the number of participants involved in a child custody matter.
Aside from the public institutions that can carry a statutory responsibility to get involved, the court could also appoint a legal guardian as an agent ad litem, which means that they will represent the child independently. This depends on the age of the child. This independent representation affords the child or children the protection and opportunity to express their own custodial preferences. Because of the children’s dependence on adults, courts might undertake swift protective measures on their own account, which implicate the due process rights of the parents.
The policy of the state of California, articulated in detail in the Family Code Section 3020, is “to assure that children have frequent and continuing contact with both parents” in the aftermath of a divorce or legal separation. With that being said, the state has an additional interest in the well-being of minor children and takes a strong position against domestic violence and child abuse.
In circumstances which involve child abuse, domestic abuse, or any threat to the child’s health and safety, pursuant to Section 3030, the courts in California can either deny custody or visitation rights. Moreover, in situations where one parent abandoned the child, is not able to, or opts against accepting custody, the other parent would be awarded sole custody of the child or children.
SOLE CUSTODY: PHYSICAL CUSTODY VS LEGAL CUSTODY
The California Family Code delineates a distinction between sole physical and sole legal custody. The family code also chisels out the visitation rights of the noncustodial parent. If a parent is awarded sole legal custody, that means that parent holds the exclusive responsibility for “decisions relating to the health, education, and welfare of a child.”As far as sole physical custody, although the underlying concept provides that the child or children will reside with one parent, the court retains the power to order certain visitation arrangements with the other parent.
A Few Child Custody Statistics
According to California law, the mother and the father (or, in some situations, the presumed father), “are equally entitled” to the custody of any unemancipated minor children of the marriage. That fact notwithstanding, in 2009, only 1 out of every 6 custodial parents nationwide were fathers (17.8%) according to the US Census Bureau. Interestingly, this contingent includes fathers who were never wedded to the mothers. With that in mind, consider that more than 80% of custodial parents were females. Of those females, 36.8% of the custodial mothers were never wedded. The total number of kids in the US living in sole custody arrangements was 22 million.
The Demise of the Preference for Mothers Presumption
Law professor J. Herbie DiFonzo wrote that the concept of a mother being the parent that should play the dominant role in child rearing only came into widespread acceptance in the middle of the nineteenth century. Way back in the colonial era, the courts usually granted sole custody to the fathers, he wrote. The former idea of the mother being the most appropriate is also known as the “tender years” theory. While this was the prevailing wisdom during the last century or so, the idea that the mother is the best choice between the parents to be awarded sole custody when a child is very young is no longer applied by the courts. California legislation requires judges to use the “best interest of the child” benchmark to arrive at their verdicts.
Now that we have set this issue aside, courts have sweeping authority when arriving at custody decisions. Because of this, parents may want to think about settling the issue by mutual agreement. This could help to mitigate the uncertainty and the cost connected with the court process.
When making a choice to award sole custody, the court will render a verdict by employing the “best interest of the child” benchmark. California Family Code § 3011 puts forth the factors the court will take into consideration. These include:
Even though the law allows the courts and the family “the widest discretion” (CA Fam Code § 3040) in settling on the best possible arrangements for the child, it also makes it necessary that “the child’s need for continuity and stability” be taken into account and the “established patterns of care and emotional bonds” be kept in tact.
THE BEST INTEREST OF THE CHILD BENCHMARK
California courts consider the following factors when working out the best course of action that is in “the best interest of the child:” (CA Fam Code § 3011)
The custody verdict may bring up allegations or a decision that granting custody to a parent would be detrimental to the child. In this respect, § 3041 of California Family Code says that:
Although transparent and convincing proof (which means, further than “mere” preponderance of evidence) is necessary in general, a finding of detriment to the child can be set apart and viewed as separate from a decision that a parent is unfit.
The court also has the authority to request drug or alcohol testing. Any test results will be held as a sealed record, to be kept in confidence, and without additional evidence, they cannot be the sole basis for a child custody verdict. Furthermore, the law forbids judges from giving a parent preference due to the parent’s sex. The immigration status of a parent (or a guardian) cannot be considered either, when considering child custody.
JOINT CUSTODY ARRANGEMENTS
The phrase “joint custody” says that both of the parents partake in both physical and legal custody. The California Code presents this as a situation in which “both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.”
Joint physical custody makes it necessary that each parent is entitled to “significant periods of physical custody.” According to an article in Time Magazine, a Swedish study that was recently released confirmed that children who live in two households with each separate parent experience lower stress levels and have fewer problems than children who reside with just one of their parents in so-called split custody arrangements. This categorically contradicts the general opinion, which emphasizes the negative effect on a child on being shifted back and forth between two households.
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