Child custody refers to the various rights and responsibilities associated with taking care of a child. These authorities and obligations are most commonly associated with divorce; however, they are also relevant to unmarried parents, grandparents, legal guardians, and individuals looking to adopt.
In this child custody overview, we’ll define important terms, talk about parental rights, and help you gain a better understanding of what to expect during this important process.
Child Custody: 101
In the family law arena, child custody refers to the myriad of rights, powers, and obligations associated with caring for a child. Most of the time, we think of these authorities when couples are getting divorce, however, child custody can also be relevant to:
Unmarried parents—couples who are not married, and want a structured parenting plan to govern interactions with their child.
Grandparents—who might be wanting to gain custody over a grandchild who isn’t receiving proper care from parents.
Legal guardians—who may need partial access to certain custodial powers in order to care for a child or incapacitated adult.
Adopted parents—who may want to take on the full mantel a of parental rights for a child who isn’t biologically theirs.
Regardless of circumstances, all child custody cases are governed by the same set of family laws. These laws attempt to make decisions based on what outcome is most likely to serve a child’s best interest.
In California, these custodial powers break down into two main groups: legal custody and physical custody.
Legal Custody
First off, there’s legal custody, which refers to a parent’s decision make authority, and their right to determine how their child will be raised.
This category of custody includes a parent’s right to make decisions about their child’s:
Medical and dental health;
Psychiatric and psychological therapy;
Education and child care;
Religious and cultural exposure;
Travel opportunities; and even,
What extracurricular activities they’re allowed to be involved in (if any).
Most of the time, California parents will end up sharing this authority, equally, meaning that both must pass off on all major decisions.
Physical Custody
The other branch of custody is physical custody. This category refers to a parent’s right to live under the same roof as their child, and to have regular, in-person face time.
Since it’s so difficult to divide a child’s time exactly equal between parents, California courts will almost always assign one parent to be the child’s custodial parent (or “primary residence” parent), while assigning the other ample parenting time in the form of visitation.
A child’s primary residence is where they live most of the time. This parent is in charge of meeting their daily needs, including food, clothing, as well as things like transportation, daily medication, and homework.
Child Custody: Joint vs. Sole
In California, legal and physical custody are assigned separately. To this end, each set of powers can be assigned to one parent, alone (in “sole custody”), or to both, as shared powers (known as “joint custody”).
Most of the time, legal powers are assigned jointly between parents. This means that both must pass off on decisions for their child, and that one cannot act without the express permission and authority of the other. Legal custody is easy to split fifty-fifty, since it doesn’t require a child to be living under the same roof as its parents.
Physical custody, on the other hand, is not as easy to divide equally. Between school, extracurricular activities, competing work schedules, and child care needs, it can be nearly impossible to give each parent an equal amount of face time with their child. Which is why it’s so common for courts to assign one parent to be the child’s primary residence.
To decide which parent will be the child’s primary residence, the court will analyze a number of individual factors, to determine what course of action will be in their best interest.
Primary Residence Factors
Some of the factors the court may consider when deciding on primary residence include:
The child’s relationship with both parents;
The child’s physical, emotional, and educational needs;
Keep in mind that in California, you can still be considered joint physical custodians, even if your arrangement has an uneven division of time.
Child Custody: Visitation
The parent who does not get assigned as the primary residence will still receive ample parenting time in the form of visitation.
A visitation schedule outlines the division of time with your child, and is determined based on what is in your child’s best interest. In California, visitation can be:
Scheduled—a detailed plan that outlines specific dates and times of exchange, including where the child will spend holidays and birthdays.
Reasonable—an open-ended agreement that does not make specific arrangements; instead, parents agree to work out the details between themselves.
Supervised—an arrangement that requires visits to be supervised by another adult, or a professional agency. This type of visitation generally occurs when the child has experienced harm or neglect because of the parent.
No Visitation—a situation where any contact with a parent (even supervised) would be physically or emotionally harmful to the child.
In addition to a visitation schedule, non-custodial parents are often assigned to pay child support.
Child Custody: Child Support
As all parents know, children don’t come cheap, and these expenses don’t end, just because parents get divorced, meaning that—without support—a child’s primary residence parent will inevitably end up shouldering the bulk of costs for these daily needs.
Hence, to offset this imbalanced financial burden, California courts will often require non-custodial parents to pay child support. This ensures both parents are responsible for meeting their child’s needs, and are held equally accountable, accordingly.
In California, child support is calculated using a formula that weighs each parent’s income against their percentage of parenting time. However, the court is allowed to deviate from this formula in situations like a high net divorce, when a higher monthly amount would be more appropriate.
Child Custody: Drafting your Parenting Plan
A family court judge is often needed to help finalize custody matters, however, they aren’t necessarily a requirement, and couples are always free to draft their own parenting plan.
This can be done between individuals—with or without attorneys—or through a more structured process, such as divorce mediation. For some couples, collaborative divorce can be another good, out of court option.
So long as your proposed custody agreement meets certain state guidelines (such as child support minimums), judges are usually happy to sign off on an agreement you reach on your own.
Child Custody: Enforcement and Modification
In California, decisions involving minors are all made under the scrutinizing lens of the best interest of the child. This legal standard requires the court to choose—not what you want, as a parent—but the outcome that will serve your child’s long-term health and wellbeing the best.
When a parent fails to uphold their duties under this order, it’s the child who ultimately suffers the most, and California courts do not take these infractions lightly. Penalties for noncompliance are dependent on the offense, but can result in serious legal consequences, including a restriction on parental rights, fines, and even jail time.
If there is a legitimate life change keeping you from carrying out your responsibilities, then talk to your attorney right away. In some situations, custody orders can be modified, however, these changes cannot be applied retroactively. So it’s important not to wait, if something comes up.
Child Custody Attorneys in California
As a parent, nothing is more important to you than your child. You want what’s best for them, and worry about how divorce will affect them. At Maples Family Law, we understand and empathize with these concerns, which is why we hope you’ll trust us to help.
If our child custody overview hasn’t answered all your questions, we hope you’ll reach out. Call us today at (209) 989-4425, or get in touch online, and let our team of experienced family law attorneys fight for your child’s best future.
Same sex marriage might be legal across the United States, but LGBT couples still face unique challenges in divorce and custody, where—even when applied the same—family laws often contain inherent discriminations that exclude same sex couples.
This is particularly true in child custody, where the presumption of parenthood falls short of the mark for same sex parents, prompting a lot of head-scratching questions about how same sex custody actually works in California.
Luckily, we’ve got you covered.
Here are answers to some of the most commonly asked questions about same sex custody in California, and how Maples Family Law can help with these important matters.
How Does California Handle Same Sex Custody?
During a same sex custody dispute, there are four main issues that the court will need to address, they include deciding:
The terms and conditions of visitation for the child’s non-custodial parent.
How much child support will be paid by the child’s non-custodial parent.
Here, your judge will assign legal and physical custody either to one parent, alone (called “sole custody”), or to both, together (in “joint custody”). This split will be made by examining a number of individualized factors, and decided according to your child’s best interest.
What Factors Does the Court Consider During Child Custody?
No two families are ever the same, which means that when it comes to child custody, no set formula can apply to every situation.
Instead, the court will make custody decisions by weighing a number of different factors against potential outcomes, such as:
The child’s relationship with both parents.
The child’s emotional and psychological needs.
The child’s physical, medical, and educational needs.
The child’s relationship with other members of the immediate households.
Which parent seems most likely to encourage a relationship between their child and their child’s other parent.
At the end of the day, your judge will choose—not necessarily the outcome you want—but the one they think will best suit your child’s long-term health and happiness.
Are the Rights of Same Sex Parents Different from Hetero Parents?
No. In California, it does not matter whether parents identify as hetero, or LGBT. Parental rights are the same, regardless of sexual orientation. The same is true for child custody laws, which are applied the same, regardless of the parental matchup.
If the Laws Are the Same, Then Why Do Same Sex Couples Have More Problems During Custody Disputes?
If both parents are legally registered parents, then (theoretically) their custody dispute shouldn’t have any extra problems. The problems—when they arise—occur when only one parent is legally recognized.
Many family laws are inherently prejudiced against same sex relationships, meaning that—even when they’re applied “equally”—the results affect LGBT parents differently.
This is especially evident with the presumption of parenthood, which states that only a child’s biological parents can claim rights at the child’s birth. This inevitably excludes one parent in a same sex relationship, requiring them to adopt before they’re granted parental rights.
California legislatures are working hard to eliminate inherent prejudices such as these.
What is California’s 3rd Parent Law?
The “3rd parent law” refers to a 2013 change to California’s family code, which upped the number of legal parents allowed on a child’s birth certificate from two to three.
Yes, you read that right. In California, three parents can be listed on any of the three (gender-neutral) parent lines.
This radical new change allows both partners in a same sex marriage to assume parental rights over their child, without the need for adoption. At the same time, it also safeguards the rights of the child’s other biological parent.
What About Unmarried, Same Sex Partners?
A couple does not have to be married to take advantage of California’s 3rd parent law. Registered domestic partners, as well as long-term (unregistered) partners can also claim rights under these rules.
However, the 3rd parent law isn’t a failsafe catchall. For example, it doesn’t specify what should happen when a couple’s relationship begins after the birth (or adoption) of a child, and the non-biological parent never formally adopted.
There is no easy answer for same sex couples in these situations, however, one solution might be to argue for rights as a de facto parent.
What is a De Facto Parent?
A de facto parent is someone who has assumed the role of a parent long enough to have formed a strong, parent/child bond with a child that is not legally theirs.
To determine whether this relationship exists, the court will analyze the situation, to see if:
The non-parent ever lived in the same house as the child.
The child’s legal parent was aware of and/or encouraged a parent/child bond.
The non-parent took responsibility for the child’s daily care, social development, education, financial needs, and health.
The relationship lasted long enough for a parent/child bond to form with the non-parent adult.
Needless to say, de facto parents have an uphill battle, and you won’t qualify just because you were in a relationship with someone who happened to have a child.
California courts will only grant this status when doing so serves a child’s best interest—or, in other words, when not granting these rights would essentially cause the same, psychological harm as it would to keep a child away from their legal parent.
How Can I Avoid Same Sex Custody Problems?
Most same sex custody problems happen because one of the parents is not legally recognized at the time of divorce. Hence, the single biggest thing couples can do to avoid these issues is to make sure both are legally recognized as soon as possible—even if that means formal adoption.
If that ship has already sailed, try to avoid waging a parentage battle in open court, where you could easily end up with a prejudicial judge. Instead, we suggest mediation (which is almost always better, anyway).
At the very least, always try to remember to put your child’s emotions and needs before your own.
Same Sex Custody Attorneys in California
If you have more questions about same sex custody in California, and how these laws might apply to your situation, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help ensure your parental rights are protected.
What happens with the kids after the divorce is started? Things can get complicated when you have children under age of 18 living with you when separating or filing for divorce. If you have minor children living with you, you and your spouse have to decide where the children will stay. The best way to do it is to talk to your spouse first, and see if you can reach an agreement regarding the children’s living arrangements. However, if you and your spouse cannot come to an agreement, you can ask the court to set custody and visitation arrangements for your children. This arrangement will become a court order, which means, you or other parent can enforce it in case the order is not followed by either parent. The court order will reflect the custody and visitation schedule as well as provisions prescribed by law or mediated by the court.
What is Legal Custody? Legal custody allows parents to make decisions or choices about their children’s school/child care; medical decisions; religious activities; sports and other extracurricular activities; travel; or residence. Parents who share legal custody both have the right to make decisions about these aspects of their children’s lives, but they do not have to agree on every decision made on their child’s behalf. Either parent can make a decision alone.
What is Physical Custody? Physical custody can be joint when the children live with both parents or sole when the children live with one parent most of the time and visit the other parent. Joint physical custody does not mean that the children must spend exactly half the time with each parent. Usually the children spend a little more time with one parent than the other because it is too hard to split the time exactly in half. When one parent has the children more than half of the time, then that parent is sometimes called the “primary custodial parent.” Sometimes, a judge gives parents joint legal custody, but not joint physical custody. This means that both parents share the responsibility for making important decisions in the children’s lives, but the children live with one parent most of the time. The parent who does not have physical custody usually has visitation with the children.
Do I have a right to spend Holidays with my children? Yes, you do have a right to spend holidays with your children, but remember that other parent has this right as well. You can make an agreement about the holidays that you would like to spend time, however, absent an agreement, the holidays will be divided equally between the parents, and parents will alternate each year with the children. However, the court may take into consideration some special holidays such as cultural, religious holidays, etc. and give that specific time to asking parent. However, this should not be intended to interrupt other parent visitation time with the children.
Can I take my children on vacation to a different state or country? You need the other parent’s permission to travel out of state with your children, especially if you want to leave the country or if, because of your traveling with your children, the other parent will miss his or her court-ordered visitation. If you cannot find the other parent, you will need to go to court and ask the judge for permission to let you leave without the other parent’s permission. You will have to look for the other parent and tell the judge everything you tried to find him or her.
I found a job in a different state and what to move there. Can I take my children with me? If you have a permanent order for sole physical custody (also called “primary physical custody”), you can move away with the children, unless the other parent can show that the move would harm the children. However, if you and your spouse have joint physical custody of the children and one parent does not want the children to move, you must show the court that the move is in the best interest of the children.
Can I change my current court order? Yes, but you have to show that there has been a “change in circumstances” since the final custody order was made. This means that there has been a significant change that requires a new custody and visitation arrangement for the best interest of the children. Parents may need to renegotiate portions of their court order every 2 to 3 years. If the parents agree on the changes, they can change their court order by using an agreement. But if the parents cannot agree on the changes, one of the parents must file papers with the court asking for a change (a “modification”) of your current child custody and visitation order.
The other parent and I agreed to a visitation arrangement that differs from the current court order. Do we have to come to court to change it? A written agreement signed by you and the other parent is a binding, enforceable agreement. However, a court cannot enforce such an agreement until it has become an order of the court called a “judgment.” A court may create a judgment by merging and incorporating the provisions of the agreement into the judgment. The judgment then replaces the agreement and can be enforced by the court if either parent violates it.
When you’re ready to get in touch with an attorney at Maples Family Law, please contact us.
