An Emotional Process
In general, any child custody process is often the single most emotionally taxing aspect of any family law matter. While It is possible to regain lost assets, it is impossible to get back time lost with your children. You need a Certified Family Law Specialist with extensive family law experience on your case. The ideal attorney will have successfully handled thousands of custody cases and can use their experience to help you get the best possible results.
Understanding the Child Custody Framework
Child custody can be a convoluted matter, whether it is in the context of a divorce, legal separation, domestic abuse or child abuse allegations, or move-away matters. Parental rights as well as children’s rights obviously hold top priority, but the state you live in also has an vested interest in the welfare of children. This could increase the quantity of participants involved in any child custody battle.
Apart from institutions that may carry a statutory responsibility to intervene, the court could go so far as to appoint a guardian as an agent ad litem, meaning that they will represent the child independently, depending on the age of the child. Independent representation gives the children the protection and opportunity to express their own custodial preferences. Due to children’s dependence on adults, courts may undertake swift protective measures on their own account, implicating due process rights of the parents.
The public policy of California State, thoroughly articulated in Family Code Section 3020, is “to assure that children have frequent and continuing contact with both parents” in the wake of a divorce or separation. That said, the state additionally has an interest in the well-being of minor children and denounces domestic violence and child abuse.
In situations which involve child abuse, domestic violence, or a threat to the child’s health and safety, in keeping with Section 3030, the courts in California may either deny custody or visitation rights. Also, in circumstances where one parent has abandoned the child, is unable to, or decides against taking custody, the other parent would be entitled to sole custody.
SOLE CUSTODY: PHYSICAL CUSTODY VS LEGAL CUSTODY
California Family Code draws a distinction between sole physical and sole legal custody. The code also carves out visitation rights for the noncustodial parent. If a parent is awarded sole legal custody, that parent holds the exclusive responsibility for “decisions relating to the health, education, and welfare of a child.” Nevertheless, although the underlying concept of sole physical custody provides that the child will reside with one parent, the court has the power to order certain visitation arrangements with the other parent.
Some Child Custody Statistics
Pursuant to California law, the mother and the father (or, in some cases, the presumed father), “are equally entitled” to the custody of an unemancipated minor child. Nonetheless, according to the US Census Bureau, in 2009, only 1 out of every 6 custodial parents nationwide were fathers (17.8%). Interestingly, this number includes fathers who were never married to the mothers. Therefore, over 80% of custodial parents were females. Of these, 36.8% of custodial mothers were never married. The total number of children in the US living in sole custody situations was 22 million.
No More Preferences for Mothers
According to law professor J. Herbie DiFonzo, the concept of a mother being the one that should play the dominant role in child rearing only became widespread in the middle of the nineteenth century. Back in the colonial era, the courts customarily awarded sole custody to the fathers, he says. That said, the idea that the mother of a child is the most appropriate parent to have sole custody when the child is very young, also known as the “tender years” theory, is no longer applied by the courts. The law in California requires judges to base their verdicts on the best interest of the child.
With this issue set aside, courts have broad authority when determining custody. For this reason, parents might want to think about resolving the issue by mutual agreement. This might help to avoid the uncertainty and the cost connected with the court process.
When making a decision to award sole custody, the court will render a decision by employing the “best interest of the child” benchmark. California Family Code § 3011 lays out the factors the court takes into consideration. These include:
Although the law permits the courts and the family “the widest discretion” (CA Fam Code § 3040) in nailing down the best possible arrangements for the child, it also necessitates that “the child’s need for continuity and stability” be considered and the “established patterns of care and emotional bonds” be upheld.
THE BEST INTEREST OF THE CHILD STANDARD
California courts take the following factors into account when figuring out the course of action that is in “the best interest of the child:” (CA Fam Code § 3011)
The custody decision may entail allegations or a decision that granting custody to a parent would be detrimental to the child. In this regard, § 3041 of California Family Code states that:
While transparent and convincing proof (meaning, further than “mere” preponderance of evidence) is required in general, a finding of detriment to the child can be distinguished and viewed as separate from a decision that a parent is unfit.
The court could also order drug or alcohol testing. The test results are held as a sealed record, to be kept confidential, and without additional evidence, cannot be the sole basis for a child custody decision. The law additionally interditcs judges from giving a parent preference due to the parent’s sex. Also, the immigration status of a parent (or a guardian) is not relevant, when considering child custody.
JOINT CUSTODY ARRANGEMENTS
The term “joint custody” says that both parents partake in both legal and physical custody. California Code lays this out 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 necessitates that each parent is entitled to “significant periods of physical custody.” According to a Time Magazine article, a Swedish study that was recently published confirmed that children who reside in two households with each parent experience less stress and have fewer issues than children who reside with merely one parent in so-called split custody arrangements. This squarely contradicts the general consensus, which emphasizes the negative effect on a child on shuttling back and forth between two homes.
Among the rights children are entitled to is the right to parental care, but due to divorce, the right becomes limited; hence parents have to work out the issue of child custody. divorce does not halt the responsibilities parents have over their children; therefore, there is a need that a reasonable arrangement on the custody of the child is pursued through all relevant avenues. At Spodek Law Group, we hold dear the subject of child custody, and ours is to ensure that your interests in the custody of your child are addressed and argued before the relevant platforms with the intent of ensuring your child is placed in your custody.
The role of our attorneys in your case
Our firm is majorly a family law firm, and for over two combined decades in practice, we have internalized the value a favorable child custody decision holds to our clients. Over the years, through dedication to client matters, our team of attorneys has obtained favorable child custody orders even in cases where our clients never thought they had a chance. For us, our clients’ interests come first, and in a child custody matter, we are aware that nothing means the world to you more than an order giving you favorable child custody rights.
Therefore we put great emphasis on the pre-trial stage of each case. We understand the value of proper preparation, and it’s at the pre-trial stage that we craft our presentation of showing your good traits. Your ex-spouse might try to prove your incompetence as a parent, while they are at it, we always go far and beyond to ensure their negative attributes are also brought to the attention of the Court as a counter of their allegations. Our experience in the trial of child custody matters has enabled us almost to tell what arguments a former or estranged spouse is likely to present. Therefore, we prepare in advance the most admissible arguments that will help present a competent case. As usual, the child’s best interest takes precedence over every other principle, and ours is to help the Court see why it is in the child’s best interest that you are given custody.
Types of child custody
The type of child custody the Court will award in your case depends on the applicable law, prayers of each party, facts of the case, and the evidence presented by each party. The Court can either award the parties physical or legal custody, depending on what it deems fit. Once you reach out to our firm for your initial consultation, we will always take you through the types of custody so that you are aware on what to expect as the outcome of the Court or an out of court settlement; whichever medium you allow us to take in helping you resolve your matter.
Physical custody can either be joint or sole. Joint physical custody is often awarded, where both parents present themselves as fit, responsible, and willing to uphold their child’s best interest by all means possible. On the other hand, sole physical custody pays attention to the physical availability of the parents and the character presented in Court by each. Ours is always to present a case that can help you get the type of custody you anticipated. For example, if you hope for sole physical custody, we always ensure the evidence presented shows your best attributes and discredits the other party’s character.
Legal custody can also either be joint or sole. The Court can jointly grant both parties the right to make decisions on behalf of the child on matters education, health, etc. Where the Court deems fit, it can award sole legal custody to one party if, by doing so, it upholds the best interest of the child.
Alternative dispute resolution
At Berenji & Associates, we believe in the building of cordial relationships on behalf of the child. Therefore if you choose the option of an out of court settlement, we give you the platform to do so, but we let you live room for modification of the settlement in case parties disagree in the future.
Call our office today and consult for free, let us help you resolve your child custody dilemma diligently and timeously.
Can Temporary Orders Involving Children be Enforced?
Child support is usually a contentious matter in legal separation processes, and the majority of the parents do not agree on the conditions. In separation, there are two fundamental choices: the guardians may get to an understanding in dealing with custody, support, and cost, or a judge can decide on the same.
Transitory Child Support Order
A separation can be a drawn-out procedure that takes months or even years. Regardless of, numerous choices might be required rapidly from an adjudicator as far as who will get the children and who will remain in the home. When one companion needs cash immediately for the kids, and impermanent child support request can be given.
A partner may demand transitory child support from the magistrate, regardless of whether a conventional separation activity isn’t recorded. These solicitations are put on a most optimized plan of attack through the court, with court proceedings planned inside days or weeks.
Spouses reserve the privilege to request a court to issue several brief requests, including determining child custody and visits, restricting a partner from home, giving child support or provision, restricting either partners from selling resources, or giving ownership of a vehicle or house to one life partner.
Step by step instructions to Request a Temporary Order
The life partner who needs cash to help the kids may demand a brief request by recording administrative work with the court. This typically requires submitting:
Application for a request to show cause (OSC) and an Order to Show Cause. An OSC is a form that specifies the claims made;
Supporting affirmation. This composed articulation discloses facts to prove the issuance of the impermanent request.
Proposed impermanent request giving the alleviation. The judge signs these requests if it’s granted.
Confirmation of service. This demonstrates to the court that reports have been conveyed to the other partner. Administrative work must be served legally to the next companion for an impermanent help request.
After the administrative work is recorded, a court hearing will occur so the adjudicator may audit details of the request, think about the information provided, question the partners, and consider the partner’s monetary circumstance.
Determination of a temporary support order
Numerous factors are taken into account regarding the support amount of money, as is the case with a perpetual child support request. The computation is intended to serve the kid, not either parent best. A court may consider numerous components, for example,
Each parent’s earning and individual resources
Costs for every child
Which gives care
The periods of the kids
As these support orders are transitory, they are intended to cover the kid’s basic needs. This can incorporate costs like lodging, garments, clinical consideration, food, and education. Different fees are ordinarily considered for the final support request.
A temporary kid help request permits each parent to arrangements for the near future based on the installments granted. A possible drawback to an impermanent help request is that the sum may not change at the judgment given eventually. It is feasible for a court to consider the transitory request sum as satisfactory and not recalculate the help sum for the child.
Temporary Support Order Enforceable
A temporary youngster bolster request is a request from the court; it is similarly as legitimate final kid help request. Impermanent help orders are fair and enforceable until the court gives the last help request.
Parents are given custody of a child based on their ability to meet his or her best interests. Generally speaking, judges don’t care how the parents feel about each other or their parenting styles. Therefore, just because you don’t agree with the decisions that your child’s other parent has made doesn’t mean that these decisions are wrong. Let’s look at some reasons why a custody ruling would be change if a dispute arises about medical care.
Is the Other Parent Denying Needed Care?
If your son or daughter has asthma, it is important that he or she have access to an inhaler. It is also important that your child have access to a doctor who can help to contain or perhaps eliminate the condition over time. The same general concept of having access to medical care when needed also applies for any condition that your child may have. To show that medication, trips to specialists or other care is needed, obtain a note from your child’s doctor. A physician may also be able to testify in court about the treatment a child needs but is being denied.
Are You Denying the Child Needed Care?
It is possible that you are denying your child the care that he or she needs to avoid developmental delays. In some cases, you may not even realize that your decisions aren’t in the best interest of your children. For instance, following the advice of a blogger over the advice of a doctor could put your child in harm’s way. In such a scenario, the child’s other parent could actually be intervening for the good of the child as opposed to trying to frustrate you.
Changing a Custody Order Isn’t Easy
Once a custody order is put into place, any changes to that order must be authorized by a judge. This may mean first going to see a lawyer to determine what changes should be proposed to that judge. It may also mean spending time and money obtaining medical records or other documentation needed to prove that the other parent is interfering with a child’s medical care.
Therefore, you have to determine if the investment of both time and money is worth it to have a custody order changed. Unless your son or daughter is about to die because of a medical problem, you should talk to the other parent about your feelings first. This may make it possible to come to a compromise solution without the need for litigation.
Informal Alterations Can Be Made to a Parenting Plan
Instead of a wholesale change to a custody agreement, alterations can be made to it on an informal basis. For instance, you could ask to take the child to the doctor or to administer medication. In some cases, your former spouse could agree to the change without any conditions. However, you should be ready to negotiate to increase the odds of getting the alteration that you want.
The other parent might propose that you don’t ask for spousal support for several months or that you provide more access to the child. It is important to note that child support orders must generally be followed to the letter if a parent is receiving public services. Otherwise, you could agree to a reduction in child support for a predetermined period of time.
However, be sure that this is in the best interest of the child before doing so. If it is not deemed to be in the child’s best interest, a judge could actually revoke or limit your custody rights if the matter ever did go to court. A reduction in spousal support will not likely be met with much outrage as these payments are designed to meet your needs only.
A Court May Want to Review the Long-Term Implications of Limited Care
If you do decide to pursue a change to a current custody order, there is no guarantee that one will be granted right away. This is especially true if a child’s health condition is a relatively minor one or is more of an inconvenience than a true matter of life or death. Instead, the judge who presides over your case may want to hear from the child’s doctors or other health professionals. Therefore, do not expect immediate results even if you feel like there is a strong case for obtaining greater decision making authority.
Custody matters are rarely easy to solve as there are many viewpoints to consider. In the event that you believe a child’s father is preventing your son or daughter from getting proper medical care, don’t hesitate to speak with a lawyer. This may make it easier to preserve your rights even if the process of altering a custody arrangement can be a long one.
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