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.”
Can I get sole custody if he’s verbally abusive to me?
No, a parent can’t get sole custody if the other parent is verbally abusive to them. Abuse of any kind should never be tolerated and it is important to seek immediate help. However, a family court judge doesn’t base their decision on child custody issues solely on the relationship between parents. Instead, they base their decision on what is in the best interest for the child. This is a standard used in family court jurisdictions around the country.
Types of Child Custody
The court will award two types of child custody: physical and legal. Legal child custody is the right to make decisions about how the child is raised. Physical child custody involves who raises the child. Each child custody type is further broken down into: joint and sole custody. Joint child custody is shared by both parents. For instance, with legal child custody, both parents make decisions about how the child will be raised.
Sole custody is what the parent wants who is verbally abused by the other parent. Sole physical custody gives the parent the right to have the child live with them on a permanent basis. Sole legal child custody gives one parent the right to make decisions about how the child is raised.
The Interests of the Child Standard
The best interests of the child standard seek to foster and encourage a child’s security, happiness, emotional development and mental health until they become an adult. The court determines the bests interests of the child to maintain a loving and close relationship with both parents.
How is the Interests of the Child is Determined?
A family court judge considers a series of questions to determine if joint or sole child custody is best for the child. For instance, if the child is old enough to make the decision, their wishes are considered. A judge also considers any special needs the child has and if each parent know how to care for those needs. The need for a stable environment for the child is also important.
The physical and mental health of both parents. A judge wants to know if each parent can set aside their differences for the best interest of the child. For example, can they help each other in fostering a good relationship with the child? That question is important when determining joint or sole child custody. If the parents have any other people in the household, the court will look at the child’s relationship to each of those people.
A Judge Also Considers Domestic Violence Issues
Is there a pattern of domestic violence in the home? A family court judge will want to know this. They will also look at each parent’s use of excessive discipline and/or emotional abuse. Is there any evidence of alcohol, drug or sex/child abuse? These issues are also considered in what’s in the best interests of the child.
Other Relevant Factors Make Impact a Child Custody Case
The standard of what’s in the child’s best interests also include other relevant factors. These factors vary from case. It may include the fact that one parent was verbally abusiveness to the other. Another relevant factor may be how much each parent works and the amount of time they are away from the household. It is important to consult a family law attorney to determine if these other relevant factors may impact their child custody case.
It is Never Good to Make False Allegations of Domestic Violence.
Sometimes, a person may be emotionally abused and so scared that it will happen to their child that they make false allegations. For instance, they may allege in family court that the other parent was also verbally abusive to the child to obtain sole physical and legal custody. If the court determines the allegations are false, the parent will face severe consequences. They may lose their right to sole or joint custody and even visitation rights.
Parents in Child Custody Case Should Always Consult a Family Law Attorney.
A judge will also consider what is in the best interest of the child before any other factors like the relationship between the child’s parents. Be advised that any parent trying to prove verbal abuse involving their child should have solid proof to obtain sole child custody. Child custody is rarely awarded because a child has two parents. However, in cases where a parent is abusive to a child, the court may award only supervised visitation rights.
It is important to contact a family law attorney whenever a child custody issue arises. The attorney will offer solid advice on how to proceed with the case. Contact a family law attorney who specializes in child custody cases for a better understanding of the best interests of the child standard.
Is a separation agreement valid if the papers weren’t filed in court?
Divorce has become a common aspect of the society today. Although the process is usually painful and regrettable, there will always be cases of divorce hence the legal coverage of the process.
A question that usually pops into mind is whether separation can serve as grounds for divorce and if so whether the separation agreement is valid if the papers were not filed in court.
Before you answer that, it is important that you understand the concept of “grounds for divorce” and the significance of separation in a divorce petition.
What Are Grounds for A Divorce?
Grounds for divorce simply mean the “reasons” that have made you seek a divorce. Normally, the court grants a divorce only for particular reasons. This means that you must explain to the court the reason or reasons for the divorce.
It is important to note that as a petitioner, the court requires that you prove only one reason to get the divorce. However, it is better that you state more than one grounds for a divorce to make your petition much stronger.
There are a total of six major grounds for a divorce that you can use in a court of law to petition for a divorce:
• Unreasonable behavior
• Separation for two years
• Separation for five years
• One year separation
Based on the above grounds, you can see that separation is a viable ground for divorce. However, the duration of separation has significant influence on the nature of divorce that the court can grant.
One Year Voluntary Separation
A judge can grant you and your partner a divorce if you have been living separately for an entire year. This ground qualifies if only you have not gotten back with your spouse at any time during the one-year duration.
You should also ensure that you have a witness to this effect in order to emphasize that you are not the party at fault in these proceedings.
Two Years Separation
The two year separation ground means that you can petition for a divorce if you and your spouse have lived have been living separate lives for a period of more than two years. This ground normally requires consent. That means both you and your partner agree to the divorce.
It is also important you note that the separation does not necessarily mean that you must have lived in different households. On the contrary, depending on your local State statutes, you can have lived under the same roof albeit leading different lives. This means that you had separate domestic and sleeping arrangements.
For you to meet the two-year separation ground, you and your wife or husband might have lived together for a period not exceeding six months. All the same, the period of separation must add up to two years.
Five Years Separation
The five year separation is the same as the two year separation ground for a divorce. However, under this ground, your spouse does not need to agree to the divorce. Therefore, this separation ground does not require consent and you and your partner need to have been separated for a minimum of five years.
The other variables in the five years separation, including living arrangements are similar to those in the two years separation ground.
Overall, if you have lived with your spouse separately for at least five years, then you can file for a divorce regardless of whether they agree or disagree.
Does Separation Also Mean Divorce?
Separation does not necessarily mean that you should divorce with your spouse. On the contrary, you can decide to get back with your wife or husband after being separated for a while.
Just as the name suggests, a separation agreement is a contract between spouses when they separate from one another. You can use the document to resolve issues such as property division, custody, debts and support among others.
A separation agreement is not just a temporary paper used by two people who just want to get away from one another. The document is binding and sometimes can be incorporated into the divorce to support final cases.
Preparation and Validity of a Separation Agreement
The law does not require that you execute a separation agreement with your spouse in case you decide to separate. However, the idea is the best thing you can do if you want to settle issues like children, support, and debts among others.
In most States, the preparation of a separation agreement requires the use of attorneys representing each of the parties. You need to have the agreement notarized during or after the separation.
No authority can compel you or your partner to sign separation agreement during the separation process. The agreement is voluntary. The agreement is void if any undue influence, coercion, lack of knowledge or coercion is shown to have influenced the document’s preparation.
Is the Separation Agreement Valid If Not Filed in Court?
Since the separation agreement is voluntary, the document is valid whether it was filed in court or not. However, it is essential to have the document prepared with the help of legal advisers and notarized.
A judge is unlikely to interfere with a separation agreement if you prepared the document in good faith, full disclosure, and that the terms are reasonable and fair.