Tuesday, May 18, 2010

California Child Custody: The Basics

California Child Custody Laws
Arlene D. Kock, Esq.

Who Gets Child Custody in California?

Like most states, the standard for child custody determinations in California is found in the Family Law Code and is designed to establish the overall best interest of the child with an emphasis on assuring the “health, safety, and welfare” of the child and “frequent and continuing contact” with both parents absent child abuse, domestic violence, or where the contact would not be in the best interest of the child as provided in the California Family Code section 3011 (See California Family Code Section 3011, 3020, 3040, 3080. Further, according to California family code section 3040, child custody should be granted in an order of preference and according to the best interest of the child.


If the child has been exposed directly or indirectly to domestic violence, then the court must design a custody plan to allow safe contact with the abusive parent. In some instances based upon the kind of abuse, the court will prohibit contact between the child and the abusive parent.

Many reasons may exist to place the child in a new custody environment or maintain the child’s current custody plan. The courts and judges are trying to steer away from the language used in the past designating one parent as a visiting parent and the other parent as the custodial parent. The way the judges and specialists in the field currently model custody definitions is to refer to both parents as having “parenting time”. This approach assists the parents in understanding that it isn't the quantity of time that is most important for the child’s well being but the quality of the time.


A common challenge for the court is to decide who will get custody of the child. Child custody may be petitioned by not only biological parents but by grandparents, stepparents, or any person who believes they can provide suitable care and guidance to the child.

According to California family code section 3040 child custody should be granted in an order of preference and according to the best interest of the child.

The court looks first to grant custody to both parents jointly or to either parent before looking to grant custody to other persons. California however does not currently establish a preference or a presumption for or against joint custody arrangements. Instead, if the parents are unable to come to an agreement on child custody and visitation it allows the California family court or California judge to make the parenting arrangement decision on a case-by-case basis according to what it believes reflects the overall best interest of the child and the specific circumstances affecting that child’s family system.

If neither parent is granted custody, then the court may look towards the person’s home in which the child has been living and the stability of that environment and then to any person deemed by the court to be able to provide appropriate care for the child. In short, the court will typically look to grant child custody first to the parents according the best interest of the child and if they are deemed unfit the court will then look to grant child custody to other persons according to the best interest of the child.


California Family Code Section 3040 states: (a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020: (1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parent's sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. (3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. (b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

As noted in the statute quoted above, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent.

If the judge finds that the parent with the current greater time share is sabotaging the parenting relationship of the other parent, the court may make an order to change custody to the other non-offending parent if the judge determines that this parent would be more responsible in insuring that the child has regular custodial visits.

Determining the best custodial placement of your children can be a life changing event for the children and the parents. To insure you and your children's legal rights, its always best to hire an attorney with extensive experience in this field of law.

Monday, May 3, 2010

DIVIDING DEBT: Be Sure Cover Everything in Your Judgment

When a spouse finally nears the end of the divorce process, one can typically sense completion, relief and fatigue. The last of the formal paperwork is being put together by the attorneys and everyone is postured to get the last documents filed with the court and on with their lives. However, this phase of a case can be the most critical of all: the proper completion of the judgment paperwork by the inclusion of all the assets and debts affecting the marriage.

If you overlook something in the agreement or not have the settlement language drafted in a way to thoroughly protect your legal rights, problems and resulting legal battles may lay ahead.

Lets look at a recent case entitled CMRE FINANCIAL SERVICES v Parton (4/29/10) 4 Civ DO55266: Wife was sued by a collection company for the post separation debts that husband incurred. The medical bills were listed in wife's petition for divorce and at the time of judgment, the court did not assign wife this debt.

CMRE sued both husband and wife for the debt claiming that the debt was the joint responsibility of the parties claiming that wife was still liable for the debt under Family Code 914 which holds a spouse can be held liable for the other spouses debts if they are deemed necessaries of life. Wife countered with Family Code 916(a)(2) which protects the spouse from the other persons debt if it is not assigned to the spouse in the divorce judgment.

The California Appellate court reversed the lower court decision that went against wife holding that Family Code 4302 (spouse is not liable for post-separation debt incurred for the other spouse's necessities of life unless the parties have so stipulated) and Family Code 916(a)(2) protect the wife from the debt collector's pursuit of the debt.

Better planning and draftsmanship of the judgment might have made a difference here. Adding specific language in the judgment to cement the debt as solely belonging to husband and by referencing the Family Code sections most relevant to this 3rd party debt collection problem might have made the creditor CMRE think twice about suing the wife.