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.
DOMESTIC VIOLENCE AND CUSTODY
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.
WHO CAN ASK FOR CUSTODY OF A CHILD
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.
WHICH PARENT WILL INSURE THE CHILD HAS VISITATION
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.
Showing posts with label move away child custody. Show all posts
Showing posts with label move away child custody. Show all posts
Tuesday, May 18, 2010
Thursday, April 1, 2010
Emotional Problems Affecting Child Custody: Addictions
Parenting children in any given situation can be a difficult assignment. When the parents are faced with divorce, the parental responsibilities can take on a new and complicated dimension. If one adds to the experience of divorce a parent suffering from some form of addictive behavior, the parent-child relationship for that afflicted parent may require close supervision and limitations.
Child custody cases in California always focuses on what is in the best interest of the child(ren). For this reason, during the courts involvement in a child custody and visitation case,the family law judge is in a role of a de facto guardian of the child's best interest.
If a parent has emotional problems or addictions that can negatively impact the child and the parents relationship, the court will take steps to ensure that the child will be properly protected when the child has contact with the problem parent.
There are various addictions that can impact the safety and well being of a child. I am including some common examples to illustrate this problem and the means by which the court might deal with the problem.
GAMBLING: Typically viewed by the courts as a financial problem one can encounter in a divorce, this addiction can negatively impact a parenting relationship. If the parent with this illness allows gambling to be a primary recreational focus, children can be exposed to adult activities during their visitation time.
For example, taking the kids to the horse races for a Sunday outing could fall into the category of inappropriate parenting choices. Other examples of being driven by a gambling addiction would be spending long hours on gambling Internet sites and devoting minimal time to the child during scheduled visitation periods.
In cases like the ones described above, the judge might schedule a tightly structured visitation plan with an order prohibiting gambling while the child is in that parent's custodial care. The court may also order professional help such as counseling for the parent as a condition for continued visitation.
SEXUAL ADDICTION: This addiction has recently received a lot of press in high profile celebrity cases. The typical method of how this addiction may impact parenting rests with the likelihood that the child may be exposed to inappropriate adult behavior or pornographic materials.
A parent leading a promiscuous lifestyle such as having multiple sex partners, swing dating,and /or sex parties runs the risk of having very limited visitation with their child if that parent's behavior and lifestyle could expose the child to the parents sexual partners.
A family law judge may severely curtail a child's contact if a parent engages in viewing pornography and adult Internet sites. The concern here rests with the chance the child could be exposed to this conduct and pornographic material.
ALCOHOL and DRUG ADDICTION: These addictions can be the most difficult to manage in a child custody case. Parents with long standing substance abuse problems can be dangerous and unreliable parents. Even if the parent truly loves and wants to spend time with their child, the timeshare may be severely limited if the parent does not maintain sobriety. The family law judge will order counseling and proper rehab for the parent and expect full compliance with the courts orders if the parent expects to have a parenting relationship with their child.
Drug testing and reporting can be ordered by the court to ensure the addicted parent is clean and sober.Sadly, some custody cases end with the sober parent having sole legal and physical custody and the addicted parent having little or no time with the child if the addicted parent fails to maintain sobriety.
To get the best custody and visitation outcome, its always important to have a qualified attorney experienced in the field of family law assist you in bringing these parenting issues before the court.
Child custody cases in California always focuses on what is in the best interest of the child(ren). For this reason, during the courts involvement in a child custody and visitation case,the family law judge is in a role of a de facto guardian of the child's best interest.
If a parent has emotional problems or addictions that can negatively impact the child and the parents relationship, the court will take steps to ensure that the child will be properly protected when the child has contact with the problem parent.
There are various addictions that can impact the safety and well being of a child. I am including some common examples to illustrate this problem and the means by which the court might deal with the problem.
GAMBLING: Typically viewed by the courts as a financial problem one can encounter in a divorce, this addiction can negatively impact a parenting relationship. If the parent with this illness allows gambling to be a primary recreational focus, children can be exposed to adult activities during their visitation time.
For example, taking the kids to the horse races for a Sunday outing could fall into the category of inappropriate parenting choices. Other examples of being driven by a gambling addiction would be spending long hours on gambling Internet sites and devoting minimal time to the child during scheduled visitation periods.
In cases like the ones described above, the judge might schedule a tightly structured visitation plan with an order prohibiting gambling while the child is in that parent's custodial care. The court may also order professional help such as counseling for the parent as a condition for continued visitation.
SEXUAL ADDICTION: This addiction has recently received a lot of press in high profile celebrity cases. The typical method of how this addiction may impact parenting rests with the likelihood that the child may be exposed to inappropriate adult behavior or pornographic materials.
A parent leading a promiscuous lifestyle such as having multiple sex partners, swing dating,and /or sex parties runs the risk of having very limited visitation with their child if that parent's behavior and lifestyle could expose the child to the parents sexual partners.
A family law judge may severely curtail a child's contact if a parent engages in viewing pornography and adult Internet sites. The concern here rests with the chance the child could be exposed to this conduct and pornographic material.
ALCOHOL and DRUG ADDICTION: These addictions can be the most difficult to manage in a child custody case. Parents with long standing substance abuse problems can be dangerous and unreliable parents. Even if the parent truly loves and wants to spend time with their child, the timeshare may be severely limited if the parent does not maintain sobriety. The family law judge will order counseling and proper rehab for the parent and expect full compliance with the courts orders if the parent expects to have a parenting relationship with their child.
Drug testing and reporting can be ordered by the court to ensure the addicted parent is clean and sober.Sadly, some custody cases end with the sober parent having sole legal and physical custody and the addicted parent having little or no time with the child if the addicted parent fails to maintain sobriety.
To get the best custody and visitation outcome, its always important to have a qualified attorney experienced in the field of family law assist you in bringing these parenting issues before the court.
Wednesday, January 13, 2010
Child Custody: Can You Move With the Kids to Get a Better Job or Find a Less Expensive Community?
The economy has caused many families to reconsider their current living situations. Record numbers of home foreclosures abound giving rise to the need to find new housing and, in some instances, different and less expensive communities in which to live and work.
When a custodial parent loses their job or must move, a companion issue may present itself. How far away can you move with the children?
The law in this area (commonly refered to "move away cases" )has evolved over the years. A century ago, the man was considered the head of the household and, in that role, was given free rein to pick up and move with his children wherever he pleased. To counter that, the courts typically awarded children to the mother under the 'tender years docterine': if the child(ren) were young, the courts would tyically award sole custody of the childern to the mother.
Much has changed since the early 20th century. Family systems regularly have both parents playing a significant role in parenting the children. In 1980, the California Legislature amended the Family Code to expressly declare it to be a policy of California to "assure minor children of frequent and continuing contact with both parents".
This law ,as well as the courts recognition of the psychological benifits of children having significant relationships with both mother and father, led courts to become more protective of the rights of a non-moving parent.
So, here we are today. Where does this area of law leave a parent that must relocate to live in a less expensive community or to find a new a job?
Courts today look at a number of factors in establishing how the custodial plan should play out with a move. The court must look at the child's interest in stability and continuity in the custodial relationship as well as practical considerations such as the distence of the move, the age of the child, the child's wishes assuming the child is sufficiently mature to have an informed opinion.
If the court feels that these parenting relations can be maintained, then the move would be allowed. However, if the court felt the move was too disruptive to the child's relationship to the non moving parent, the court may rule that the children should be in the custodial care of the non moving parent.
Consequently, courts have the broadest discretion and the courts orders are effectively not appealable since great deference is given to judicial discretion by the appellate courts.
If you are planning to move or are the parent facing a motion requesting that the other parent move away with the children, you and your childrens legal rights will be determined by the judge assigned to hear your case. Therefore, it is critical that in proceeding to court, you secure the best chance possible on a favorable outcome by having a skilled family law attorney represent you in this life changing legal matter.
When a custodial parent loses their job or must move, a companion issue may present itself. How far away can you move with the children?
The law in this area (commonly refered to "move away cases" )has evolved over the years. A century ago, the man was considered the head of the household and, in that role, was given free rein to pick up and move with his children wherever he pleased. To counter that, the courts typically awarded children to the mother under the 'tender years docterine': if the child(ren) were young, the courts would tyically award sole custody of the childern to the mother.
Much has changed since the early 20th century. Family systems regularly have both parents playing a significant role in parenting the children. In 1980, the California Legislature amended the Family Code to expressly declare it to be a policy of California to "assure minor children of frequent and continuing contact with both parents".
This law ,as well as the courts recognition of the psychological benifits of children having significant relationships with both mother and father, led courts to become more protective of the rights of a non-moving parent.
So, here we are today. Where does this area of law leave a parent that must relocate to live in a less expensive community or to find a new a job?
Courts today look at a number of factors in establishing how the custodial plan should play out with a move. The court must look at the child's interest in stability and continuity in the custodial relationship as well as practical considerations such as the distence of the move, the age of the child, the child's wishes assuming the child is sufficiently mature to have an informed opinion.
If the court feels that these parenting relations can be maintained, then the move would be allowed. However, if the court felt the move was too disruptive to the child's relationship to the non moving parent, the court may rule that the children should be in the custodial care of the non moving parent.
Consequently, courts have the broadest discretion and the courts orders are effectively not appealable since great deference is given to judicial discretion by the appellate courts.
If you are planning to move or are the parent facing a motion requesting that the other parent move away with the children, you and your childrens legal rights will be determined by the judge assigned to hear your case. Therefore, it is critical that in proceeding to court, you secure the best chance possible on a favorable outcome by having a skilled family law attorney represent you in this life changing legal matter.
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