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An Extremely Emotional Process
In the midst of the dissolution of a marriage, child custody is frequently the most emotionally charged portion of any family legal situation. Whereas one can certainly get back assets that were lost, it is impossible to get back time with your kids that was lost. The best thing you can do is to get a Certified Family Law Specialist with a great deal of family law experience to get your case underway. The most suitable attorney for the job will have successfully worked on thousands of custody cases and can tap into their experience to assist you in getting the best results available.
The Child Custody Framework: A Better Understanding
The topic of child custody can be unfortunately convoluted, whether it is in a matter of 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.
Aside 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. What this means is that they will represent the child independently. That provision depends on the child’s age. This independent representation presents the child or children with the protection and opportunity to share their own custodial preferences. Due to the fact that children depend so heavily on adults, courts might undertake rapid protective measures on their own account, which implicate the due process rights of their parents.
In the state of California, spelled out in detail in the Family Code Section 3020, the policy is “to assure that children have frequent and continuing contact with both parents” in the wake of a divorce or legal separation. With that being said, the government has an additional interest in the well-being of children and takes a strong stance against domestic violence and child abuse.
In those circumstances where child abuse, domestic abuse, or any threat to the child’s health and safety is a problem, pursuant to Section 3030, the courts in California state can veto either custody or visitation rights. In addition to that, in situations where a parent abandoned the child, is not able to care for the children, or opts against accepting custody, the other parent would be given sole custody of the child or children.
PHYSICAL CUSTODY VS LEGAL CUSTODY: SOLE CUSTODY OPTIONS
In the California Family Code, a distinction between sole physical and sole legal custody exists. The family code additionally parses out the visitation rights of the noncustodial parent. If a parent is given sole legal custody, then that parent holds the exclusive responsibility for “decisions relating to the health, education, and welfare of a child.” In the case of an award of physical custody, although the underlying concept provides that the child or children will reside with one of the two parents, the court still has the power to order certain visitation arrangements with the other parent.
Some Child Custody Statistics
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.
The Demise of the Presumption of Custody Preference for Mothers
Law professor J. Herbie DiFonzo has written about the concept of a mother being the parent that should play the dominant role in child rearing. According to professor DiFonzo, this concept only came into universal acceptance in the middle of the nineteenth century. Long ago in the colonial era, judges more frequently granted sole custody to the fathers, he wrote. The erstwhile idea of the mother being the most suitable caregiver of babies and very young children is also known as the “tender years” theory. This was the prevailing wisdom during the last century or thereabouts. In modern times, 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 enforced by the courts. California legislation obligates the judges that preside over custody cases to use the “best interest of the child” benchmark to arrive at their verdicts.
Now that we have set this issue aside, courts have far reaching authority when coming into custody decisions. Due to this fact, parents may want to think about agreeing upon this issue by mutual agreement. This could go a long way in mitigating the uncertainty and the cost connected with the court process.
When coming to the choice to award sole custody, the court will render a decision by employing the “best interest of the child” watermark. California Family Code § 3011 lays out the factors the court will take into account. These include:
Even though the law permits the courts and the family to have “the widest discretion” (CA Fam Code § 3040) in deciding on the best possible arrangements for the children involved, it also makes it a necessity that “the child’s need for continuity and stability” be taken into consideration and the “established patterns of care and emotional bonds” be kept in tact.
THE BENCHMARK: THE BEST INTEREST OF THE CHILD
California courts take the following factors into consideration when working out the best course of action that is in “the best interest of the child:” (CA Fam Code § 3011)
The custody decision could bring up allegations or a decision that giving custody to a parent would put the child’s well being at risk. In this regard, § 3041 of California Family Code dictates that:
Even though transparent and convincing proof (in other words, further than “mere” preponderance of evidence) is generally a necessity, a finding of detriment to a child can be set aside and viewed as distinct from a decision that a parent is unfit.
The court also retains the authority to ask for drug or alcohol testing. That said, all test results will be held as a sealed record, to be kept in strict confidence. Without further evidence against the parent, they cannot be the sole basis for a child custody verdict. Furthermore, the legislation forbids the courts from giving a parent preference due to the parent’s sex. The immigration status of a parent (or a guardian) also cannot be considered either when deciding on child custody.
ARRANGEMENTS OF JOINT CUSTODY
The “joint custody” situation provides that both of the parents partake in both physical and legal custody. The California Code puts this forward 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.” As published in a Time Magazine article, a Swedish study that was recently conducted confirmed that children who live in two homes with each separate parent experience reduced stress levels and have less problems than kids who reside with just one of their parents in what are referred to as split custody arrangements. This categorically contradicts the usual opinion, which emphasizes the negative impact on a child on being shifted back and forth between two homes.
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