Long Beach Child Custody Lawyers
Child Custody Cases: A Process Fraught with Emotion
At the center of the dissolution of a marriage, child custody is very often the most emotionally charged detail of the legal wrangling. Whereas one can certainly get back material things that are lost, it is impossible to recuperate lost time with your little ones. The best favor you can do yourself is to get a Qualified Family Lawyer with a long resume of family law experience. The most suitable attorney for the task will have successfully gone to bat in a multitude of custody matters and can bring their experience to the table to get the best results available.
Child Custody Framework: A Closer Look
The subject of child custody can be convoluted, whether it involves allegations of abuse, legal separation, divorce, or a request for permission to relocate. The rights of the children most certainly hold top priority, slightly above with parenting rights. The state you reside in also has a lawful interest in the safety of children. In some cases, this fact can bring the number of participants involved upwards in the matter of the custody of a child.
Additional to the governmental institutions with statutory responsibility for a child, the court could also assign a legal guardian as an agent ad litem. This agent represents the child independently, dependent upon the child’s age. This independent representation presents the child or children with protection and opportunity to express their own preferences. Due to the fact that children depend so much on adults, courts could undertake short term protective measures on their own account, which implicate the due process rights of the parents.
In the Golden State, spelled out in detail in the Family Code Section 3020, the policy is “to assure that children have ample and continuing contact with both parents” in the event of a divorce or legal separation.
In those instances where child abuse, domestic abuse, or any threat to the child’s health and wellbeing is a problem, pursuant to Section 3030, the courts in California can veto any existing custody or visitation rights. In some unfortunate situations in which a parent abandons a child, is not able to care for them, or simply opts against accepting custody, the other parent would be granted sole custody of the child or children.
A Few Child Custody Stats
In accordance with 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. This fact notwithstanding, in 2009, a mere 1 out of every 6 custodial parents nationwide were male (17.8%) according to the US Census Bureau. Interestingly, this group includes fathers who were never wedded to the mothers of their children. In light of this fact, consider that more than 80% of custodial parents were women. Of those women, 36.8% of the custodial mothers were also never married. The total number of minor children in the US living in sole custody homes was 22 million.
Sole Custody Situations: Physical or Legal
The Family Code makes a clear distinction between sole physical and sole legal custody of a child. The law additionally parses out visitation rights for the noncustodial parent. If a parent is awarded sole legal custody, then that parent retains the exclusive responsibility for “decisions relating to the health, education, and welfare of a child.” Where an award of physical custody is concerned, although the underlying idea is that the child or children will reside with one of the two parents, the court still has the authority to order visitation for the other parent.
A Look at the Presumption of Custody Preference for Mothers
The concept of a mother being the one that should play the dominant role in child rearing has been written about by law professor J. Herbie DiFonzo. This concept only came into universal acceptance in the middle of the 1800s. Actually, in colonial times, judges more often granted sole custody to the fathers, Professor DiFonzo wrote. The erstwhile construct of the mother being the best available caregiver of babies and very young children is also referred as the “tender years” theory. This has been the prevailing wisdom during the last century. Conversely, in modern times, the thought that the mother is the obvious choice between the parents to be awarded sole custody when a child is very young is no longer enforceable by the courts. Legislation in the state of California obligates the judges that preside over custody cases to utilize the “best interest of the child” benchmark to arrive at their verdicts.
California Family Code § 3011 details out the factors the court will look at. These include:
- The children’s well being, health and safety,
- History of any type of child abuse, and
- Any additional factors the court finds relevant.
Even though the law allows the courts and the family to have “the widest discretion” (CA Fam Code § 3040) in arriving at optimal arrangements for the children involved, it also makes it a necessity 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 place.
The Interest of The Child
Courts in California state take the following factors into consideration when deciding upon the course of action that is in “the best interest of the child:” (CA Fam Code § 3011)
- The wellbeing, safety and health of the child;
- Any history of abuse at the hand of either parent;
- The nature and frequency of customary contact between the child or children and both parents;
- Abuse of alcohol, prescription drugs or any controlled substances by either of the parents.
The custody consideration has the potential to bring up allegations or bring at the idea that giving custody to a parent would put the child’s well being in peril. In this regard, § 3041 of California Family Code says:
- Any allegations of detriment will not appear in the pleadings.
- A court has the authority to prohibit the public from the hearing on this issue.
Even with the necessity of transparent and convincing proof (as in more than “mere” preponderance of evidence), a determination of detriment to a child can be put aside and perceived as distinct from a decision that a parent is unfit.
The court also has the authority to ask for drug or alcohol testing. Nevertheless, any and all test results will be kept as a sealed record, to be held in strict confidence. Without more evidence against the parent, they cannot be the only basis for a child custody decision. Furthermore, the legislation does not allow the courts to give a parent preference due to the parent’s sex. The immigration status of a parent (or a guardian) also would not be considered either when deciding on child custody.
Joint Custody of a Child
“Joint custody” arrangements provide that both of the parents partake in both physical and legal custody. The 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 requires that both parents are supposed to get “significant periods of physical custody.”