Orange County Child Custody Lawyers
An Emotionally-Charged Process
In the midst of the dissolution of a marriage, child custody is commonly the most emotionally charged portion of any family legal situation. The best thing you can do is to secure a Certified Family Law Specialist to get your case underway. The most suitable attorney will have successfully worked on thousands of custody cases and can utilize their experience to assist you in getting the best results available.
The Child Custody Matrix: A Better Understanding
The subject of child custody can be convoluted, whether connected to domestic abuse or child abuse allegations, a legal separation, a divorce, or a move-away request. The rights of the children clearly hold top priority, along with parenting rights. In addition, the state you reside in also has a lawful interest in the welfare of children. In certain cases, this fact can raise the number of participants involved in the discussion of the custody of a child.
Apart from the governmental institutions that can bear a statutory responsibility to be involved, the court could also assign a legal guardian as an agent ad litem, meaning they will represent the child independently. Such independent representation presents the child with the protection and the chance to express their own custodial preferences. Because children rely so heavily on adults, courts might undertake swift protective measures on their own account, which implicate the due process rights of the parents.
In California, as detailed in the Family Code Section 3020, the policy 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 government has an interest in the well-being of children on top of that.
In such circumstances where child abuse, domestic abuse, or any threat to the child’s health and safety is an issue, pursuant to Section 3030, the courts in California state are able to veto either custody or visitation rights. In addition to that, in situations in which a parent abandoned the child, is unable to care for them, or opts against accepting custody, the other parent would be granted sole custody of the child or children.
SOLE CUSTODY OPTIONS: PHYSICAL CUSTODY VS LEGAL CUSTODY
In the California Family Code, a differentiation between sole physical and sole legal custody exists. The family code also parses out the visitation rights of the noncustodial parent. If a parent is awarded sole legal custody of the children, then that parent has the exclusive responsibility for “decisions relating to the health, education, and welfare of a child.” If one gets physical custody, even though the underlying concept provides that the child or children will reside with one of the two parents, the court still orders visitation arrangements for the other parent.
Some Child Custody Statistics
Pursuant to California law, the mother and the father (or, in some circumstances, the presumed father), “are equally entitled” to custody of any unemancipated minor children of the marriage. This truth 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 segment of the population includes fathers who were never wedded to their children’s’ mothers. With this in mind, consider that over 80% of custodial parents were women. Among those women, 36.8% of the custodial mothers were also never married. The total number of minor children in the US residing in sole custody homes was 22 million.
The End of the Presumption of Custody Preference for Mothers
Law professor J. Herbie DiFonzo wrote about the idea that the mother is the parent that should play the dominant role in child rearing. According to DiFonzo, this concept was only universally accepted around the mid nineteenth century. In the colonial era, judges more commonly granted sole custody to the fathers, he wrote. The erstwhile concept of the mother being the most suitable caregiver of babies and very young children, also known as the “tender years” theory, is no longer enforced by courts. This was the prevailing wisdom during the last century or thereabouts. California legislation obligates the judges that preside over custody cases to use the “best interest of the child” benchmark to arrive at their verdicts.
With this issue set aside, courts have far reaching authority when making custody decisions. Parents may want to think about converging on this issue in a mutual agreement. This could be a great way to mitigate the uncertainty and the cost connected with the court process.
While the law permits the courts and the family to hold “the widest discretion” (CA Fam Code § 3040) in deciding on the best arrangements for the children, it also makes it a requirement that “the child’s need for continuity and stability” be taken into consideration and the “established patterns of care and emotional bonds” be kept solid.
THE BEST INTEREST OF THE CHILD BENCHMARK
California courts take the following details into consideration when deciding the best course of action that is in “the best interest of the child:” (CA Fam Code § 3011)
- The safety, well-being and general health of the child;
- If there is a history of abuse at the hand of either parent;
- The nature and frequency of consistent contact between the children and both parents;
- Abuse of controlled substances, alcohol, or prescription drugs by either parent.
The custody decision could unearth allegations that giving custody to a parent would put the child’s well being at risk. In response, § 3041 of California Family Code dictates that:
- Any allegations of detriment must not appear in the pleadings.
- A court has the authority to prohibit the public from the hearing on this issue.
Although transparent and convincing proof (further than preponderance of evidence) is usually a necessity, a finding of detriment to a child can be set aside and seen as distinct from a decision that a parent is unfit.
The court also holds the authority to request drug or alcohol testing. That said, all test results will be maintained as a sealed record, to be stored in strict confidence. Absent of further evidence against the parent, they cannot be the sole basis for a child custody verdict. Further, the legislation forbids the courts from granting a parent preference due to the parent’s sex. The immigration status of a parent (or a guardian) also cannot be taken into account either when deciding on child custody.
The “joint custody” option provides that both of the parents partake in both physical and legal custody. The California Code offers 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 a requirement that each parent is entitled to “significant periods of physical custody.”