Tag: <span>Legal Custody</span>

Where Will My Child Live?

March 8, 2022April 12, 2022
by Briana White

For a parent, nothing is more stressful than staring down the uncertainty of a child custody battle. You’re worried about how they will cope, what they will think, and—perhaps most importantly—where they will live.

The bad news is: we don’t know where your child will live. Parenting time decisions are made on an individual, case by case basis, so it’s impossible to predict the outcome of your dispute.

The good news is: California courts want what’s best for your child; and this means splitting your child’s time as close to equal as possible.

If you’re worried about where your child will live, read on to find out more about how California courts determine child custody, and what Maples Family Law can do to help you navigate these important issues.

Child Custody: Where Will My Child Live?

To answer the question, “Where will my child live?” we first have to look at child custody, as a whole.

In California, child custody isn’t just about where a child will live. It’s also about who has the authority to make decisions on behalf of that child, and the power they have to influence how that child will be raised. This division breaks child custody down into two main groups:

Legal custody
Physical custody.

A parent who has legal custody has the right to make decisions about their child’s health, schooling, medical care, and religious exposure, and to be involved in all major and minor decisions regarding their child. On the other hand, a parent with physical custody has the right to spend time with their child, and to live under the same roof.

When parents get divorced, the court can no longer assume their child-rearing goals are aligned. As a result, these custody powers must be divided.

Exactly where your child lives—and who gets to make that call—will hinge heavily on how the court divides these powers.

Dividing Child Custody: Joint vs. Sole

In dividing child custody, California courts have options. They can either make parents share, or give power to one parent, alone.

Joint custody occurs when parents must share power.
Sole custody occurs when only one parent has authority.

Both legal and physical custody can be either shared, or given to only one parent, alone.

As a general rule, California courts will almost always divide legal custody equally between parents. Joint legal custody gives both parents an equal say in things like health, education, how their child will be raised. Judges won’t award sole legal custody unless it’s absolutely in a child’s best interest (usually in cases of abuse or neglect).

Physical custody, on the other hand, is another matter. Due to busy schedules, distance, and a myriad of other factors, dividing a child’s time equally between parents can be challenging.

That being said, it’s also pretty dang important, because the division of physical custody plays a huge role in where your child will live.

Sole Physical Custody

A parent with sole physical custody is the primary caretaker for their child, and has a lot of discretion in deciding where their child will live. In California, this often goes hand in hand with sole legal custody (though, not always).

A sole custody parent is still bound by the other parent’s visitation order, however, so they can’t relocate out of state without judicial permission. If an out of state move was requested, the court would revisit the custody order, to see if another visitation arrangement would work better.

Joint Physical Custody

Joint custody is favored by California courts. However, even when both parents are qualified, it can still be difficult to split time exactly 50/50.

Luckily, you don’t have to have a perfect split in order to have joint custody. California courts will consider your arrangement “joint,” so long as your child spends a significant amount of time living with both parents.

A parent who has the greater share of time is sometimes called the “custodial parent,” or “primary residence parent.” (In contrast, the parent with less time is the “non-custodial” parent.)

Custodial parents have primary custody over their child, and as such—so long as they stay within certain geographic boundaries—have a lot of sway when determining where their child will live. Like with sole custody, however, they’re still bound by the other parent’s visitation order, and are still required to involve the other parent in all major decisions.

Child Custody Factors

When it comes to making these custody decisions, California courts will analyze a number of different individualized factors, and choose the outcome that will serve your child’s long-term health and happiness the best.

To figure out what outcome that might be, California courts will consider:

The child’s age;
The child’s mental and physical health;
The child’s emotional needs;
The child’s relationship with each parent;
Each parent’s ability to care for their child;
Each parent’s health and finances; as well as,
Any history of domestic violence, abuse, or neglect.

In addition, California judges may consider a child’s preferences, if they are at least fourteen years old. However, this doesn’t mean the child will get their way.

A child is still a minor until they reach eighteen, and teenagers don’t always know what’s in their own best interest. Hence, judges have the authority to overrule these wishes, and pick the arrangement that will ultimately be in the child’s best interest.

Child Custody Modification

California lawmakers are aware that life doesn’t always stay the same. Change happens, and what works now might not in the future, which is why they’ve provided a way for you to modify your custody arrangement.

Both custodial and non-custodial parents are allowed to petition to modify custody. However, for the court to consider this request, there needs to have been a significant change in circumstance.

Situations that often qualify for this consideration include:

A change in career, death in the family, or other illness requiring significant attention.
A parent has put their child in a dangerous environment.
A new relationship puts the child in harm’s way.
A custodial parent is not complying with a visitation order.
A custodial parent has failed to provide their child with proper care (such as, repeatedly missing doctor’s appointments, or arriving late at school).

A custody modification essentially opens both parents up to scrutiny from the court. So it’s important not to make frivolous requests (otherwise, the results could backfire).

Judges will evaluate new evidence, and either approve or deny the change, based on what would be in the child’s best interest.

Child Custody Attorneys in California

Your custody arrangement can’t work, unless it’s unique to you. Which is why it’s so important to have a family law attorney that you know and trust; someone who isn’t afraid to fight for your child’s best interests.

If you have more questions about custody, and where your child will live, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us help find the arrangement that’s right for your child.

Child Custody

Intro to Visitation in California

January 12, 2022January 14, 2022
by Briana White

Between school, play, chores, and extracurricular activities, kids are a busy bunch. Which means that when it comes to divorce, it can sometimes be tricky for California courts to divide a child’s time exactly equally between parents—even when both are evenly qualified.

That’s why, in California, it’s common for judges to assign one parent to be the child’s primary residence parent, while awarding the other ample parenting time in the form of visitation.

Visitation is an essential part of custody, and parental rights. It ensures each parent has access to their child, and that both can continue strengthening that relationship through in-person contact.

Here’s what you need to know about visitation in California, how it relates to child custody, and what the Maples Family team can do to help you navigate these important parental rights.

An Intro to Visitation in California

Visitation refers to the scheduled time that a noncustodial parent gets to spend with their child. It is also a major component of child custody; so much so, that you can’t really talk about one without discussing the other.

But what is child custody, exactly?

In California, “custody” encompasses all the rights, powers, and responsibilities that come with being a parent. Technically, someone could have custody over an incapacitated, ill, or aging adult, too; however, this concept is most commonly associated with children and divorce.

As a matter of law, only a child’s parents—whether biological, or adopted—have an inherent right to custody over their child. However, in some limited circumstances, the court might grant the child’s grandparents visitation.

When deciding custody for divorcing or unmarried parents, California will divide these powers into two major groups: legal custody, and physical custody. Here’s a closer look.

Legal Custody

First, there’s legal custody. This aspect of custody deals with a parent’s decision making and legal authority, and enables a parent to make choices about their child’s:

Schooling and education;
Childcare;
Mental health treatment;
Medical care (including doctors, dentists, and emergency surgery);
Extracurricular activities; and even,
Religious and cultural exposures.

Legal custody packs a lot of important rights under one umbrella. From large-scale decisions, all the way down to signing that field trip permission slip, legal custody puts you at the forefront of how your child will be raised.

Physical Custody

On the other hand, is physical custody. And, like its name implies, this category of rights protects a parent’s right to have physical, in-person time with their child.

In legal speak, this time is called “access,” and it encompasses much more than just the occasional fly by.

Parents have a right to see their child—and not just briefly and sporadically—but long-term and extended. They have the right to live under the same roof as their child, where they can regularly interact, care for, and build the kind of a relationship that only an intimate home environment can really provide.

This is where visitation comes into play.

Because it can be so difficult to divide a child’s time exactly equally between parents, California courts will usually assign one parent to be the child’s primary residence, while awarding the other visitation. But how to decide who gets what?

The court makes these assignments by considering what is in the best interest of the child.

Best Interest of the Child

“Best interest of the child” is a legal standard that is applied for all decisions involving minors, and strives to choose an outcome that will serve a child’s long-term health and happiness the best.

Hence, when deciding who will be a child’s primary custodian, and who will receive visitation, some of the things your judge might consider will include:

The child’s age;
The child’s health;
The child’s relationship with each parent;
The child’s social and community ties;
Each parent’s ability to care for the child; and,
Any history of substance abuse or domestic violence.

As you can see, gender does not appear on our list of considerations. That’s because in California, custody decisions are completely gender neutral, meaning that the type of visitation order you receive will depend entirely on your merit as a parent, alone; not your sex (or sexual orientation, for that matter).

Visitation Orders

Visitation orders aren’t a “one-size-fits-all” kind of thing. Instead, these assignments will vary between cases, and are designed to work within your family’s unique circumstances.

To this end, there are four main ways California courts can assign visitation in California. These include:

Scheduled Visitation. In this situation, parents have an order that specifies all the details of their division of time, including dates, times, drop offs, pickups, holidays, and other special occasions. This type of visitation is typically the result of contested divorce litigation.
Reasonable Visitation. Here, a couple’s order is more open ended, leaving the parents to work out specific details, as needed. This type or visitation typically works best for parents who have a good working relationship.
Supervised Visitation. When a child’s safety and/or well-being cannot be trusted to the noncustodial parent, the court might assign supervised visitation. In these scenarios, visits must be chaperoned by either another adult, or professional agency (depending on the circumstances).
No Visitation. Finally, there’s always the option of no visitation. Here, the risks of harm to a child’s physical or mental wellbeing are so great, that the court is not comfortable awarding any type of in person time. In this scenario, the custodial parent would have “sole physical custody.”

In California, parents are always free to come up with their own custody arrangements, either on their own, or through mediation.

However, keep in mind that your parenting plan—including all decisions about custody, visitation, and child support—will still need judicial approval, whether agreed upon or not.

Tips for Reducing Custody Conflicts

Once finalized, your custody agreement will be enforceable, and you will be expected to carry out your obligations, as outlined.

In practice, this isn’t always easy (no one said dealing with your ex would be…) But sharing custody doesn’t have to be as hard as you might be thinking, either.

To help your custody arrangement operate more smoothly, try to use some of these tips when interacting with your ex:

Be polite and respectful.
Be clear and specific.
Stay on topic.
Write down what you discussed, and share a copy with your child’s other parent.
Keep a record of your visitation times, drop offs, and exchanges.
Avoid talking about custody problems while under the influence.
Avoid talking about custody problems while your child is around.
Avoid casual small talk, text messaging, or other non-essential communication.
Make sure you’re both present when discussing important matters with doctors, teachers, and other professionals.
Do not talk badly about your child’s other parent to that child.
Focus on what’s best for your child (not what you want).

If it helps, treat your child’s other parent the same way you’d handle a business colleague. This mentality will ensure that all your encounters stay short, sweet, and professional at all times.

In California, your attitude towards sharing custody can actually influence the division of custody. In some cases, a systematic failure to cooperate with your child’s other parent could actually result in the court awarding primary residence to the child’s other parent. So it’s best to keep things as civil as possible, at all times.

At the end of the day, if there is a legitimate reason why your custody arrangement is no longer working, then it may be time to talk to your attorney about modifying visitation.

Do You Need Help with Visitation in California?

As a parent, you want what’s best for your child, and turning them over to someone you no longer trust can be incredibly difficult. That’s why it’s so important to have a family law attorney you can trust. One who will fight tirelessly for an arrangement that’s in your child’s best interest.

If you have more questions about visitation in California, we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and together, we can find the custody order that’s right for your family.

Child Custody

Child Custody Overview

December 23, 2021
by Briana White

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;
The child’s need for continued social stability;
The child’s tie to relatives living in the area;
Each parent’s ability to care for their child;
Any history of family violence; as well as,
Any history of substance abuse by either parent.

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.

Child Custody

Enforcing a Visitation Order

December 13, 2021December 13, 2021
by Briana White

In California, all custody decisions are made according to a child’s best interest. This includes being able to have a loving, healthy relationship with both of their parents, whenever possible. However, these relationships can’t blossom without quality time.

That’s why when parents don’t live together, the court will often issue a visitation order. These edicts ensure that the rights of both parents are being upheld, and that each has the chance to foster a meaningful relationship with their child.

California courts don’t make these orders lightly, and failure to uphold them can trigger serious legal consequences.

If your child’s other parent isn’t cooperating with your custody arrangements, here’s what you need to know about enforcing a visitation order in California, and how the Maples team can help protect your rights and your child’s best interests.

What is a Visitation Order?

Visitation orders dictate how a child’s time will be spent, including where the child will live, and how they will spend holidays. They are a key part of upholding parental rights—in particular, a parent’s right to have access to their child.

In terms of child custody, this access is often referred to as “physical custody.”

Both parents have the right to physical custody with their child. However, if they aren’t living under the same roof, this time must be shared. To this end, California courts will assign one parent to be the custodial parent (or, primary residence parent), while granting the other ample parenting time in the form of visitation.

Visitation orders are generally just one component of child custody. Along with visitation, your child custody orders will also address legal custody, and outline child support.

How to Enforce a Visitation Order When My Ex Has Primary Custody?

It’s hard being a non-custodial parent. You don’t get enough time with your child as it is, and when your ex stops complying with visitation, this puts you in a tough spot. Because now you have to decide if the stress of enforcing visitation is worth the strain on your already limited time together.

If this situation sounds familiar, start by asking yourself these four questions:

Is my order enforceable?
Does my order need to be updated?
Have we tried making things easier?
Is contempt really worth it?

Here’s a closer look.

1. Enforceability

Visitation orders are kind of like personalized laws made just for you. These edicts are backed by the full weight of the law, and breaking them warrants the same legal consequences as breaking any other law.

That being said, the police can’t enforce a law that’s too vague.

Before jumping through legal hoops, make sure that the terms of your visitation order are clear. In some cases, headaches can be cleared up by shoring up details like specific dates and times—something you may be able to coordinate together, without the court.

2. Updates

If your visitation order is sufficiently clear, then maybe the problem is that your order is dated.

As all parents know, a child’s needs change just about as fast as they grow. Hence, a visitation arrangement that worked well for your family five years ago might not be the best fit here, in the present. Indeed, some agencies won’t even help enforce orders that are too old.

If your order is no longer a good fit, then it might be time to consider a custody modification.

3. Alternatives

You don’t need to go back to court to resolve everything. Before drafting up a motion, try talking to your ex to see if there are tweaks you can make. Sometimes a simple change in drop-off location or an alternative pick up time is all it takes to keep things running smoothly.

If it helps, there are even exchange agencies, which can help supervise the transfer of children between parents. These professionals can be really helpful at both keeping parents honest, and tracking violations. And while they do charge a fee, it’s definitely cheaper than the cost of an attorney.

4. Contempt

If all else fails, the last step you should consider is contempt of court.

Contempt is a criminal action, which can be taken against someone who intentionally and willfully violates a court order. This is a serious charge, and one that comes with a very high burden of proof, meaning they’re tough to litigate—especially for visitation violations.

In terms of custody agreements, contempt is most often used as a means to enforce child support.

If you are thinking about pursuing contempt, it’s a good idea to consult your family law attorney, first. In many cases, the potential benefits aren’t worth the effort of pursuing in terms of visitation.

Visitation Order Modification

Judges don’t want to see you back right after delivering your original visitation order. However, under the right circumstances they are willing to consider a custody order modification.

Some of these circumstances might include:

A repeated, long standing pattern of custody order violations.
The child’s education needs have changed.
The custodial parent’s home environment has changed.
The child is being subjected to harm under the current order.
One parent is no longer fit to carry out parental responsibilities.
There has been a change of employment.
The custodial parent needs to relocate.

As always, California parents are free to draft their own parenting plan—and modifications. This can be done between the individual parents, or in a more structured environment, such as mediation.

Remember, however, that the changes will not be enforceable until they are approved by a judge—even if both of you agree. Until then, be sure to follow your original order, or else you could risk being held in contempt.

Enforcing a Visitation Order in California

Failure to comply with visitation isn’t just a violation of your parental rights. It’s also an affront to your child, who is being robbed of the opportunity to foster a loving, healthy relationship with their other parent.

That’s why if you have more questions about enforcing a visitation order in California, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us help ensure your child’s best interests are being met.

family-law

Unmarried Parents in CA

September 24, 2021
by Briana White

Divorce and custody go together about as often as peanut butter and jelly. Hence, it’s easy to see why parental rights and marital rights sometimes get mixed up.

But—just like you don’t have to pair peanut butter with jelly—you also don’t have to be married to be a parent. Which is why parental rights are kept completely separate from the marriage relationship.

Hence, whether you are married, divorced, widowed, partnered, single, or unmarried, parents everywhere have the same rights and responsibilities to their child, regardless of relationship status. That being said, unmarried parents may still face some additional hurdles, when it comes to child custody.

Here are some of the most common questions that arise for unmarried parents in California, and how the Maples Family Law team can help you navigate these challenges.

Presumption of Parenthood

We meant what we said in our intro about parental rights: all California parents have the same parental rights and obligations, regardless of relationship status.

But if that’s true, you might be wondering, then why do unmarried parents in California face additional challenges?

The primary reason that unmarried parents are in this conundrum is because of California’s presumption of parenthood, which assumes that any child born into a marriage is the legal offspring of the individuals in that marriage.

This presumption is great, if you’re a legally married couple, because it allows you to automatically assume the mantel of parenthood (and all of its accompanying rights and responsibilities) without any hoopla. However, there are two main instances when the parenthood presumption falls short:

When both parents are unmarried.
When one parent is married, and the other is not (a.k.a.: adultery).

In both of these instances, California’s presumption of parenthood either wrongly presumes who the parents are, or simply fails to cover one half of the duo, altogether.

Because of this, unmarried parents may have a few more hoops to jump through, in order to establish themselves as legal parents—however, this does not mean that the rights of unmarried parents are any different.

The Rights of Unmarried Parents

Whether adopted or biological, the job of a parent comes with a lot of authority, decision-making power, and responsibility over a child. This authority is what’s roughly defined as child custody, which is divided into two main categories:

Legal Custody—the right to make decisions on behalf of your child, and to determine how they will be raised.
Physical Custody—the right to see your child, spend time with them, and have them live in your home.

These parental rights are given a lot of deference by California courts, and—whether you are married or unmarried—they will not be taken away unless it’s absolutely necessary for a child’s best interest.

However, because the presumption of parenthood falls short, unmarried parents will need to establish themselves as a child’s legal parent, before they are able to exercise these rights.

Establishing Parentage

The nature of the birthing process doesn’t leave a lot of room for doubt as to who a child’s mother is. Hence, a birth mother is automatically considered a child’s legal parent—with full legal power and parental authority—as soon as her child is born.

Unmarried fathers, on the other hand, are not given this automatic presumption, unless they have already been living with their partner in a family-type setting prior to birth. If not, however, the unmarried father will be unable to claim rights to things like custody or visitation until they are recognized by the court as a legal parent.

This can be done one of two ways:

By mutual consent of the parents, upon the child’s birth.
Through a court trial.

Here’s a closer look.

1. Consent at Birth

The easiest way to establish paternity is for both unmarried parents to sign a Declaration of Parentage, upon their child’s birth.

If this form is completed before you leave the hospital, then an unmarried father can be included on their child’s birth certificate right from the get-go. However, this declaration can also be signed later on—even after the birth certificate has been issued—so long as it is voluntarily executed by both parents.

In the event that an unmarried mother refuses to recognize her child’s father, or, if the father does not want to take responsibility for their child, then things will need to be settled in court. Which brings us to the second method of establishing parentage.

2. Court Contested Parentage

The second way to establish parentage is through a judge.

This is obviously a more complex (not to mention emotional) method of establishing parentage. On the bright side, however, these days it is also a fairly straightforward process, thanks to DNA testing.

In California, either a mother or a father can file a parentage case, so long as they meet California’s six months residency requirement, and can show that they have a valid claim.

Typically, the court will respond to these petitions by ordering a non-invasive DNA test (or, in other words, a mouth swab). Refusing to take this test is usually considered an admission of guilt, and the court will assign parentage, accordingly.

Keep in mind, however, that you can’t take the perks of parenthood without the responsibilities. If the court determines that you are, in fact, a child’s legal parent, then you will be responsible for more than just playtime and decision making—you’ll also be on the line for your child’s care, too, which will likely include child support.

Once this parentage is legally established, both parents will need to draft a parenting plan, which will organize your respective rights and duties as co-parents.

California’s Third Parent Law

Historically, same sex couples have faced a lot of problems in the areas of parentage and child custody. This is because—even when they are legally married—it’s impossible for both spouses to be their child’s biological parent.

Because of this, the presumption of parenthood is inherently prejudiced towards them, acting as a barrier to legitimate parents, who are unable to assume parental rights upon their child’s birth.

The problem is, of course, how do you extend these rights to same sex parents, without accidently infringing on the rights of a birth mother (who may not want to give up her rights, altogether)?

Thankfully, California legislatures are working hard to address these issues, and in 2013 they adopted a groundbreaking “Third Parent Law.” Under this new rule, three, gender neutral parent lines are now provided on a child’s birth certificate, allowing a birth mother to retain her rights, while also giving committed, same sex couples and spouses full parenting rights immediately upon their child’s birth.

Unmarried Parents Attorneys in California

Whether you’re a peanut butter and jelly couple, a single condiment parent, or some other kind of sandwich, altogether, parental rights are the same, regardless of your relationship status.

Hence, if you’re an unmarried parent in California, and have more questions about the rights and obligations of you and your child’s other parent, 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 child’s best interests are being met.

family-law

Joint Custody

February 1, 2021
by Briana White

Child custody refers to a parent’s authority to care for their child, and, during divorce, a judge can assign these powers between spouses as joint custody, or to only one parent in sole custody.

The division of such rights can be quite complicated, and couples should not try to resolve these matters on their own. Instead, families should work with an attorney to make sure that both the child’s best interest are being met, and that they aren’t giving up any essential rights. However, that doesn’t mean it has to be a dogfight.

Most couples find that working together to find a child custody agreement makes the whole divorce a lot easier.

But what is custody, and how does it apply to you?

Here’s a little bit about how custody is handled in California, and why you and your spouse are likely to be awarded joint custody rights.

What is Joint Custody

When you become a parent (either biologically, or through adoption), you don an invisible mantle of rights and responsibilities which are inherent to the role. For children born inside the marriage, this parental authority is shared equally and used interchangeably between spouses. However, upon divorce, these powers will need to be distributed between partners, since some responsibilities simply can’t be shared if parents aren’t living under the same roof.

To this end, judges are free to divide parental rights in one of two ways:

Joint Custody—powers are shared between spouses, either unequally or equally; or,
Sole Custody—when authority is given to one parent, alone.

Hence, “joint custody” refers to any situation where the judge orders parents to share parental authority, instead of assigning powers to just one spouse.

Legal and Physical Custody

In California, these custodial powers are broken down into two groups: legal and physical custody.

Legal custody refers to a parent’s right to make decisions on behalf of their child. This includes being able to make major decisions on things like health and education. It also encompasses a parent’s right to sign documents, have access to records, and the right to be able to decide what religious and cultural norms the child is exposed to.

Physical custody, on the other hand, is about where a child spends their physical time. This refers to both where the child will live, as well as visitation (which may or may not be included, depending on how your judge divides physical custody in your parenting plan).

Both of these custodial power groups (legal and physical) can be shared, jointly, or held by one parent in sole custody.

Joint Legal Custody

If you and your partner are awarded joint legal custody, this means that you share the right to make choices about your child’s health, welfare, and education. In these situations, both of you must pass off on all major decisions that require parental authority (such as surgery), and you are each granted equal access to records and information.

As a general rule, courts are loath to take away a parent’s right to choose how their child is raised. And since legal authority doesn’t necessarily require parents to live under the same roof, parents end up sharing legal custody as joint partners in the majority of California divorce cases.

Why a Judge Wouldn’t Award Joint Legal Custody

It doesn’t happen often, but in rare cases, one parent is awarded sole legal custody. This usually only happens in extreme circumstances, though, such as when:

It’s in the child’s best interest for one parent to have exclusive rights and responsibilities;
The parents have proven they cannot make decisions together;
One parent is unfit; or,
One parent is incapable of making decisions.

As you can see, most of these situations revolve around harm, which means that—short of something more serious, such as neglect, domestic violence, or criminal activity—your pleas for sole legal custody probably won’t be awarded.

In short, being a bad spouse doesn’t mean someone is a bad parent, and the only time courts do not grant joint legal custody is if doing so would hurt the child, somehow.

Joint Physical Custody

When parents share joint physical custody, this means they both have the right to have the child physically present in their homes for significant periods of time. Unlike legal custody, however, physical custodial powers have to be divided (rather than shared), since a child cannot be in two places at once. The split doesn’t have to be 50-50, though.

While it is (technically) possible for joint custody to be split 50-50, because of outside influences like work, school, extracurricular activities, and childcare arrangements, dividing a child’s time exactly equally between parents is almost impossible.

Instead, it’s much more common for the court to assign one parent to be the “custodial parent” (or rather, the child’s “primary residence parent”), while the other (the “non-custodial parent”) receives ample visitation.

Examples of Joint Custody Division

Custody and visitation can be divided any number of ways. One of the most common plans is for parents to alternate weeks, starting on a certain day. Monday is a common choice for these families (since it’s practical for school and work reasons), and in this situation, your joint custody agreement could look like this:

	Mom	Dad
Week 1: Monday – Sunday	✓
Week 2: Monday – Sunday		✓
Week 3: Monday – Sunday	✓
Week 4: Monday – Sunday		✓

Other families might prefer to break up this “alternating week” cycle, and include a midweek visit. That way, kids and parents don’t have to go a full week without seeing each other.

If that was the case in your situation, your custody schedule might look like this:

	Mom	Dad
Week 1: Sunday – Tuesday	✓
Week 1: Wednesday		✓
Week 1: Thursday – Saturday	✓
Week 2: Sunday – Tuesday		✓
Week 2: Wednesday	✓
Week 2: Thursday – Saturday		✓
Week 3: Sunday – Tuesday	✓
Week 3: Wednesday		✓
Week 3: Thursday – Saturday	✓
Week 4: Sunday – Tuesday		✓
Week 4: Wednesday	✓
Week 4: Thursday – Saturday		✓

There are also visitation schedules that combine every other week with every other weekend, prolonging the visit for an extra weekend each cycle. This arrangement is common during the summer, for parties who live more than twenty-five miles away from each other.

Other plans might include:

Three days on, four days off;
Alternating three days on, four days off;
Two weekends a month;
Alternate weekends plus two weeks during summer;
Every other holiday; or even,
All time when the child isn’t in school.

This is by no means an exhaustive list. The number of combinations and options available to couples are extensive, and ultimately, the type of joint custody agreement you and your ex-spouse work out will be up to you. After all, only you know what’s best for your family.

Couples who are interested in having more flexibility in drafting this arrangement, however, should try to avoid divorce litigation. Instead, consider an alternative method of dispute resolution, such as mediation or collaborative divorce.

Your Stockton family law attorney can help you figure out what parenting time agreement will work best for your unique situation.

Do You Need to Talk to a Lawyer About Child Custody?

At Maples Family Law, we welcome the opportunity to answer your questions about divorce and issues such as custody, child support, spousal support, and the divorce process.

Call us at (209) 989-4425 for a divorce case review with an experienced Stockton divorce lawyer, one who can give you the advice you need to begin moving forward.

Child Custody

11 Common Questions About Joint Custody Schedules in California

April 20, 2020August 10, 2020
by Angie

If you’re like many people, you have plenty of questions about developing a joint custody schedule during or after divorce. Check out these joint custody schedule frequently asked questions to see if you can find an answer here – or, if you don’t see your question or need personalized legal advice, call us at 209-395-1605 to schedule a consultation with a Stockton divorce attorney.

11 Common Questions About Joint Custody Schedules in California

Check out these 11 common questions about joint custody schedules in California.

What is a Typical Joint Custody Schedule?

In California, joint custody schedules vary greatly from family to family. The courts recognize that no two families are exactly the same – and kids of various ages have different needs. Some typical joint custody schedules include: the 50-50 custody schedule, the 2-2-3 joint custody schedule, and the week-on, week-off custody schedule. Your attorney can help you understand your options if you’re sharing joint custody with your ex.

How Do I Get a Joint Custody Schedule?

When you’re going through a divorce or breakup and you’re sharing custody of your children with their other parent, you get a joint custody schedule by making one. Create your schedule with your kids’ best interests in mind; that’s what it’s going to take to get a judge to sign off on your joint custody plan. You might choose a week-on, week-off joint custody schedule if you have older children, or you might prefer the common 2-2-3 parenting schedule. You can customize your schedule to reflect your family’s unique needs, but the key is that you create something that does what’s best for your children. If the custody schedule you submit to the court isn’t something that serves your child’s best interests, the judge in your case is going to tell you to try again.

What is a 50-50 Custody Schedule?

In a 50-50 custody schedule, each parent has the children half the time. That may mean that you alternate days or weeks, or it might mean that one of you picks the kids up from school, drops them off the next morning, and then the other parent picks them up and starts the cycle over again. This way, each parent has equal time with his or her children. You can even work it out in another way – what’s most important is that it works for your family.

The custody schedule you choose should always be in your kids’ best interests, not yours. The judge assigned to your case will look carefully at the joint custody schedule you’re submitting to make sure it’s truly what’s best for your children.

Related: Child custody in California

What is a 2-2-3 Parenting Schedule?

A 2-2-3 parenting schedule is a common way that parents with joint custody of children work out times to be with them. Many parents choose this schedule because it allows ample uninterrupted time with the children, and each parent gets the kids every other weekend. The numbers in a 2-2-3 parenting schedule represent days, so let’s start with Parent A and Parent B.

Parent A has the children for the first two days of the week. Parent B takes over for the next two days, and then Parent A takes the kids for the three days (to include the weekend). Then, it’s Parent B’s turn to get the kids for two days. Parent A gets the kids back on the second two-day group, and then Parent B takes the kids for three-day weekend. The schedule just keeps going back and forth in this way so that both parents enjoy weekend and weekday time with the children. It’s not right for every family, such as those who live far apart or who have very young children who are used to one parent being the primary caregiver, but it can be a great solution for people who live close to each other with older children.

What is the Best Custody Arrangement?

Some parents argue that the best custody arrangement is the 2-2-3 parenting schedule, the 50-50 parenting schedule, or something else entirely – but it doesn’t matter what some parents think. What matters is what’s the best custody arrangement for your children. The state of California recognizes that kids benefit most from frequent and continuing contact with both of their parents, but what that looks like is up to you and your children’s other parent.

If you have young children, the best custody arrangement might be one in which the kids stay in one home throughout the week and visit the other parent’s home on a few evenings or for some time on weekends. Older kids might prefer the 2-2-3 parenting schedule, or even the week-on, week-off joint custody schedule. When you’re putting together your parenting plan, think about what’s going to be easiest on your children. If they’re in sports, for example, it might make sense for them to stay in one home throughout the week and spend weekends with their other parent. The bottom line is that every family is different, so every joint custody schedule should look a little different.

Related: Infant custody laws

What’s the Difference Between Shared and Joint Custody?

In California, shared and joint custody are the same thing. In other states, the terms vary – and there are big differences between shared and joint custody. However, in California, you can say that you have shared custody or joint custody; both still mean that you and your children’s other parent share the rights and responsibilities of making decisions for your kids, or that you share physical time with the children (or both).

There are two types of custody in California: legal and physical. Legal custody refers to your rights and obligations, particularly when it comes to deciding where the kids will live, where they’ll go to school, what types of routine medical treatment they’ll get, and other things that impact their welfare. Physical custody refers to where the children live.

With joint or shared legal custody, both parents share the responsibility for deciding where the kids will live, as well as making decisions about their health, well-being and education. With joint or shared physical custody, the children live with both parents.

How Can I Get Custody Without Going to Court?

You can get custody of your children without going to court – for the most part. You and your children’s other parent can come up with a custody agreement between yourselves. You will have to go to court (unless your attorney can go on your behalf) to get the judge to sign off on it – and when that happens, it becomes a legally binding court order. The only way to really get custody without going to court is by reaching an agreement with your spouse; you must both agree, and the custody plan you come up with must serve your children’s best interests.

What Does a 70/30 Custody Schedule Look Like?

A 70/30 custody schedule looks like this: A child spends 70 percent of his or her time in the care of one parent, and 30 percent of his or her time with the other. Really, it works out to spending two nights out of seven with one parent (and the other five with the other parent).

Here’s what a 70/30 custody schedule looks like on paper:

	Monday	Tuesday	Wednesday	Thursday	Friday	Saturday	Sunday
Week 1	Parent A	Parent A	Parent B	Parent A	Parent A	Parent A	Parent B
Week 2	Parent A	Parent A	Parent B	Parent A	Parent A	Parent B	Parent A

Naturally, you can modify this schedule so it works out for your family; maybe different days of the week are better.

Why is Shared Custody the Best Arrangement?

Shared custody is the best arrangement – for some families. It’s not best for every family. However, for families who are able to have shared custody, they consider it the best arrangement because it allows children to have frequent and continuing contact with both parents.

Some families aren’t cut out for shared custody, such as those that have had domestic violence issues in the past. When one parent lives too far away, or when the parents aren’t amenable to each other, shared custody can cause more problems than it’s worth.

How Many Days is 70/30 Custody?

Usually, 70/30 custody works out to being five days with one parent and two days with the other. The days can vary week by week, based on what’s right for your family.

What is a Reasonable Visitation Schedule?

A reasonable visitation schedule is one that allows the children frequent and continuing contact with both parents. The state of California recognizes that this is essential for kids, so whenever possible, a parenting plan or parenting time agreement should allow for both parents to spend plenty of time with the children.

Every family is different, though, and what your family finds to be a reasonable visitation schedule might not work for another family. The key to settling on something reasonable is working with your children’s other parent to create the best joint custody schedule for your needs. When you both have a hand in creating it, you’re both more likely to feel that it’s reasonable – and you’re more likely to want to stick to it.

How Far Can I Move With Shared Custody in California?

When you have shared custody, you can move – usually up to 45 to 50 miles away – provided that you have agreement from your children’s other parent. If your kids’ other parent doesn’t agree with you moving, you’ll have to show the court that the move is in your children’s best interest. The court can say no, so be prepared. However, that doesn’t mean you personally can’t move; you may simply have to move without your children.

Do You Need to Talk to a Lawyer About Creating or Changing a Joint Custody Schedule?

If you’re divorcing and need to create a joint custody schedule, or if you’re thinking about moving away because it’s what’s best for your family, we may be able to help you. Call us at 209-395-1605 to schedule a free consultation with a Stockton divorce attorney who understands the complexities of joint custody schedules, legal and physical custody, and other divorce-related matters today.

Child Custody

California Infant Custody Laws

February 22, 2020August 10, 2020
by Angie

California values a child’s right to spend time – and have good relationships with – each parent. But are there California infant custody laws that apply to babies and toddlers?

Here’s what you need to know.

California Infant Custody Laws

California’s child custody laws don’t differentiate by age (except when a child is old enough to express a preference on which parent he or she would rather live with). However, all of our state’s laws are based on one thing: the best interest of the child.

What is the “Best Interest of the Child”?

When courts are determining child custody in California, judges base their decisions on what’s best for the child. Judges can look at several factors, including:

The child’s age
The child’s health
The emotional ties that each parent shares with the child
Each parent’s ability to care for the child emotionally, physically or financially
Whether there’s a history of family violence or substance abuse
The child’s ties to home, school and community
Other factors that are relevant to the case

How California Custody Laws Apply to Infants

The courts recognize that kids’ health, safety and welfare are the most important things in a child custody agreement. That means different factors might come into play when you’re divorcing with a baby. For example, the court might consider:

Whether your child is breastfed or bottle-fed
What kind of childcare is necessary so a parent can work or attend school
Whether both parents are capable of providing for an infant’s needs at home
What kind of attachments your child has developed with each parent

For example, let’s say there’s a mother who’s breastfeeding her baby. The baby’s other parent hasn’t been around; in fact, the other parent has only seen the child a few times over the past several months. In a case like that, the court may award the mother more time with the child and limit the child’s visitation with the father. (Remember, though, there’s no way to predict how a judge will rule. Judges take several factors into account, so no attorney can guarantee any type of custody arrangement.)

Legal Infant Custody vs. Physical Infant Custody

There are two main types of custody in California: legal and physical.

Legal custody refers to a parent’s authority to participate in major decisions about a child’s health, welfare and education. Many parents share legal custody.

Physical custody refers to a child’s physical presence with a parent. Many parents also share physical custody, and the child primarily lives with one parent while visiting the other.

Related: Child custody in California

In the Absence of California Infant Custody Laws…

You can avoid asking the court to make a determination on child custody whether you have an infant or an older child. The best way to do that is to reach an agreement with your child’s other parent – whether or not you were ever married.

Reaching agreements on child custody can be incredibly difficult. As parents, you both want what’s best for your child – but you may not see eye-to-eye on the details. Sometimes, attorneys recommend working with a mediator to reach agreements about custody (and other issues, too).

A mediator is an impartial third party who can dig deep into a conflict and find reasonable solutions. If you choose to work with a mediator, he or she will go back and forth between you and your child’s other parent until you’ve reached an agreement you can both live with. Then, you’ll take that agreement to the judge in your case. As long as the agreement is in the child’s best interests, there’s a good chance that the judge will sign off on it. When the judge agrees, it’ll become part of your divorce settlement (or, if you weren’t married, your official child custody order).

Do You Need to Talk to a Lawyer About Custody?

If you have an infant and you’re thinking about divorce, or if you need help sorting out child custody with someone you were never married to, we may be able to help.

Call us at 209-395-1605 for a consultation now. We’ll answer your questions and start building a strategy that gets you the best possible outcome.

Child Custody

Parenting Time Agreements in California: The Basics

November 12, 2019August 12, 2020
by Angie

In California, parenting time agreements cover important information about:

How much time a child will spend with each parent
Information on how the parents will make decisions about important issues regarding the child

Parents can share time with the kids, or the court could award physical custody to only one parent. A judge makes the final decision on custody, but it’s usually up to the parents to come up with an agreement that’s fair for everyone.

Here’s what you need to know.

Parenting Time Agreements in California: The Basics

A parenting time agreement, commonly called a custody and visitation agreement, is a written agreement that both parents are responsible for upholding. It includes time-share information, which pertains to how much time each parent gets to spend with the kids, as well as decision-making information, which pertains to how the parents will make important choices about their child’s health, education and welfare.

Related: Preparing for divorce

Time-Sharing in Parenting Time Agreements

When you and your soon-to-be ex-spouse come up with a parenting time agreement, you have to remember that it must be fair to everyone involved – and it must meet your child’s best interests. If it doesn’t, the judge in your case will not agree to sign it and make it an official order.

The time you share with your children is referred to as physical custody. Physical custody can be joint, which means that your children live with both of you at different times. It can also be sole or primary, which means that your kids live with one of you most of the time and visit the other parent.

California courts recognize that kids benefit most from frequent and meaningful contact with both parents, which means you should divide your time fairly. Visitation can fall into a few categories:

Scheduled visitation. Scheduled visitation relies on a written schedule that details exactly when the children will be with each parent. These types of visitation plans help avoid confusion and can prevent conflicts because everything is already clear-cut.
Reasonable visitation. If your agreement just provides time for “reasonable visitation,” it won’t have a schedule with specific details. These types of orders let you and your ex-spouse work things out on your own, and they can work if you two get along very well. However, disagreements and misunderstandings can make these types of agreements difficult to deal with.
Supervised visitation. If your children’s safety and well-being require supervised visitation, your parenting time agreement will reflect that. Only the judge can decide whether supervised visitation is actually necessary. You can ask your Stockton divorce attorney to request it if there’s a situation in your family that you believe warrants supervised visitation.

Legal Issues in Parenting Time Agreements

Your parenting time agreement should also include information on how you and your ex will make major decisions about your children. These decisions can be made jointly or by only one of you, and they include things like:

School or childcare
Religious activities or institutions
Psychiatric, psychological, or other mental health counseling or therapy needs
Visits to the doctor, dentist, orthodontist or other health professionals (except in emergency situations)
Sports, summer camp, vacations or extracurricular activities
Travel

If you and your ex share legal custody, you both have the right to make these types of decisions. However, if only one of you has legal custody, that parent is authorized to make all the decisions – even if they apply while the children are with the other parent. The only exception is for emergency medical care; the parent who physically has the children when an emergency arises is authorized to make those decisions.

Do You Need to Talk to a Lawyer About a Parenting Time Agreement?

If you need to discuss setting up a parenting time agreement with an attorney, we may be able to help you. Call us right away at (209) 546-6870 or contact us online to schedule a consultation today.

Child Custody

What is the Best Interest of the Child in…

July 17, 2019July 17, 2019
by Angie

What is the best interest of the child in California? If you’re like many people, you’ve heard that phrase before – but what does it mean, and how does it apply?

Here’s what you need to know.

What is the Best Interest of the Child in California?

When you hear the term the best interest of the child, it’s generally about child custody. When the courts have to make a determination on custody, such as where a child will live and which parent will make important decisions about the child’s life, the judge has to look at what’s best for the child.

The courts recognize that children’s health, safety and welfare are the most important things. The courts also recognize that kids benefit from frequent and continuing contact with both parents.

Some of the factors the courts will look at when determining the best interest of the child in California include:

The child’s age
The child’s health
The emotional ties that each parent shares with the child
Each parent’s ability to care for the child emotionally, physically or financially
Whether there’s a history of family violence or substance abuse
The child’s ties to home, school and community

Ultimately, what’s best for the child will win the day in court.

The Best Interest of the Child in California: Full vs. Joint Custody

California custody laws provide parents with the opportunity to work out their own custody agreements. As long as the agreement the parents reach is fair to everyone involved – and especially to the children – the judge is likely to sign off on it. However, sometimes the courts have to intervene and make a determination on custody on their own. This can happen when the parents simply cannot agree, even with mediation, or when the court has information that shows a certain arrangement would be better for the kids involved.

There are two main types of custody: legal and physical.

Legal custody refers to a parent’s authority to participate in major decisions about the child’s health, education and welfare.

Physical custody refers to the child’s physical presence with a parent.

Most parents share legal and physical custody – that’s called joint custody. However, in some cases, only one parent has legal custody. Sometimes only one parent has legal and physical custody, too. Usually, that happens when:

It’s in the child’s best interest for only one parent to have those rights and responsibilities
The parents have proven to the court that they are unable to make decisions together
One parent is unfit
One parent is incapable of making decisions or of caring for the child

Modifying Custody Because it’s in the Child’s Best Interest

Sometimes the court will enter an order when parents split up, but later, the order stops working as it should. For example, if the parents are supposed to share physical custody of the child, but one parent moves across the country, the custody order will need to be modified. Another example might be if one parent is putting the child in a dangerous environment, or if he or she is failing to properly care for the child.

Custody orders can be modified, but you’ll have to ask the court to agree to a new plan. Your attorney can file the appropriate petitions and walk you through the process.

Do You Need to Talk to an Attorney About Custody and the Best Interest of the Child in California?

If you’re going through a divorce, or if you need to change your custody agreement, we may be able to help you. Call us right away at (209) 546-6870 or get in touch with a Stockton divorce attorney online to schedule a consultation today.