Issues such as divorce, child custody and visitation, child support, and alimony/spousal support are very emotionally draining and stressful times for most people. Having the proper legal guidance you need will help to alleviate a lot of the emotional stress and frustration you may face in your family law case. I am here to help you get through all of your issues in a compassionate manner while being your very strong advocate.
Child Custody and Visitation
Most people are confused when it comes to child custody. There are two separate forms of custody – physical custody and legal custody.
Please see my Blog page on this website for related articles which may be of interest:
Legal Custody pertains to the decision-making powers of the parents. Usually, courts will award joint legal custody on a 50/50 percent basis. In such a case, mutual consent of both parents is required on important issues affecting the child such as, but not limited to some of the following:
- Enrollment or termination of attendance in a particular school
- Commencement or termination of psychiatric, counseling or other mental health care
- Non-emergency medical, dental and orthodontic treatment
- Driving privileges
- Enrollment in extra-curricular activities which occur during the other parent’s custodial time
Physical Custody pertains to whom the child lives with. There are multiple ways of dividing up physical custody. Parents may be awarded Joint Custody which may be divided up 50/50 or in unequal portions such as 70/30 and the like. There can also be Sole Physical Custody, wherein one parent has exclusive custody of the child.
Factors in Determining Child Custody
In California, a Judge will look at what is in “The Best Interest of the Child” in making a custody determination. The Judge will look at several factors including, but not limited to:
- The parents’ ability to agree, communicate and cooperate in matters relating to the child.
- The parents’ willingness to accept custody and any history of unwillingness to allow visitation that is not based upon substantiated abuse.
- The interactions and relationship of the child with its parents and siblings.
- Any history of domestic violence.
- The safety of the child and the safety of either parent from physical abuse by the other parent.
- The preference of the child if the child is of sufficient age and capacity to reason so as to make an intelligent decision.
- The needs of the child.
- The stability of the home environment offered.
- The quality and continuity of the child’s education.
- The fitness of the parents.
- The geographical proximity of the parents’ homes.
- The extent and quality of the time spent with child prior to or subsequent to the separation.
- The parents’ employment responsibilities.
- The age and number of children.
How Can I Ask the Court for Custody?
Either party can ask the court for custody at any time during the pendency of trial or Final Judgment.
Request for Order (RFO)
This is the formal vehicle by which you can ask the court for an order regarding child custody while your divorce case is moving along in the court.
A parent who has been found to have perpetrated domestic violence against the other party, will have difficulty getting child custody.
California Family Code Section 3044 spells out that if the person seeking custody has perpetrated domestic violence within the past 5 years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to this person is detrimental to the best interest of the child.
The only way in which this presumption can be rebutted by a preponderance of the evidence considering all of the following factors:
- Whether the perpetrator has demonstrated that giving him or her sole or joint physical or legal custody is in the best interest of the child
- Whether the perpetrator has successfully completed a batterer’s treatment program
- Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate
- Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate
- Whether the perpetrator is on probation or parole, and whether she or he has complied with the terms and conditions of parole
- Whether the perpetrator has a restraining order against him or her and has complied with the terms and conditions of the restraining order
- Whether the perpetrator of domestic violence has committed any further acts of domestic violence
Please also see my Blog article entitled “Evidence Gathering in Preparation for Your Domestic Violence Restraining Order Hearing”