Child Custody

Child custody is one of the most litigious and acrimonious parts of a divorce process. Arguments over which is the better parent and who the kids would rather live with can quickly turn bitter and hostile with the kids put in the middle. I understand how difficult this can be

Under California law there are two parts to child custody:

1. Legal Custody
2. Physical Custody

Either type of custody can be granted as "sole" (to one parent only) or as "joint" (to both parents). *NOTE: the term "primary physical custody" has no legal meaning. Marriage of Rose & Richardson (2002) 102 CA 4th 941.

Legal Custody

Legal custody is the right to make determinations regarding your child such as health care, education and other issues pertaining to the welfare of the child.

Sole legal custody means that one parent alone will make all decisions regarding the child's health care, education and general welfare. The other parent is not entitled to be a part of any decisions nor are they entitled to access medical and school records of the child unless the court orders otherwise.

Joint legal custody means that the parents will share the rights and responsibilities of decision making. It does not, however, mean that they will have to make those decisions together. Under an order for joint legal custody either parent may act alone in making decisions regarding the health, education and welfare of the child unless specifically ordered to do otherwise by the court.

Physical Custody

Physical custody is the time that the child will be with each parent (visitation).

Sole physical custody means that the child will live with one parent and that parent alone will have custody of the child subject to the court's right to order visitation.

Joint physical custody means that both parties will have substantial timeshares but does not require that exactly half of the child's time is spent with each parent. An order for joint physical custody must address the specific dates and times of custody, including holidays and other special days. The physical custody order should be sufficiently detailed so as to provide a parent the ability to seek relief for child abduction or kidnapping.

In making determinations for legal and physical custody the consider many factors including:

1. Frequent and continuing contact with both parents: It is the public policy of California that minor children maintain "frequent and continuing contact with both parents" in spite of the parties' separation. Therefore the courts try to maximize the interaction of the child with each parent except where it would not be in the child's best interest.
   
   1. When making a custody order the court will consider which parent would be more likely to support this policy and allow contact with the noncustodial parent.
   2. Where this public policy conflicts with the best interests of the child, the court will limit a parent's contact with the child.
   
   
2. Child's Best Interest: Any order for custody, both legal and physical is always determined according to what is in the child's best interest. Custody should not be awarded based on the interests of the parents nor in an effort to achieve equity between the parents. The child's health, safety and welfare is the court's utmost concern.
   
   1. The court may consider anything that is relevant when determining what orders are in the child's best interest.
   2. Abuse - the court may take into consideration any accusations of abuse either of the child or of another member of the household. Where abuse is established to have occurred, there is a rebuttable presumption that it is not in the child's best interest to award an order of sole or joint legal or physical custody to the perpetrator.
      
      1. *NOTE: false accusations of abuse may subject the accuser to sanctions
      2. Where the child is a product of rape, the court will not award custody or visitation to the perpetrator
      
      
   3. Contact with siblings - The courts have determined that children have "a right to the society and companionship of their siblings" and absent a showing of compelling circumstances will not award an order that interferes with that companionship.
   4. Use of alcohol or controlled substances - In determining the best interest of the child a court will consider the alcohol and drug abuse history of each parent. Pursuant to the Family Code a court may order any parent who is seeking custody of, or visitation with, a child to undergo testing for the illegal use of controlled substances and alcohol if there is a judicial determination that there is a habitual, frequent, or continual use of illegal drugs or alcohol.
   5. Child's preference> - A court must consider and give due weight to the custody and visitation preferences of a child if that child is of sufficient age and capacity to form an intelligent preference. Where the child's preference is not supported by mature reasoning, the court need not abide by the request of that child.
   
   

Nonparent Custody Award

Where the court determines that awarding custody to either parent would be detrimental to the health and welfare of the child, the court may order custody to a third party.

If you have any questions about your existing custody orders or if you need to obtain orders for custody please contact Attorney Erica C. Affinito for a free initial consultation. Child custody can be one of the most painful parts of a divorce, and one of the most important. Attorney Affinito understands the emotional toll of a custody dispute and will fight to protect you and your children.