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A little more about child custody law
In family law, child custody refers to two issues: 1) a parent's right to have his or her minor child in his or her physical presence (physical custody), and 2) the right to make legal decisions for the care and safety of his or her child (legal custody).
Who has a right to child custody? Any person who conceives a child, or cares for a child (legally or physical), might be able to establish child custody rights to that child, unless those rights have terminated for some reason. A child born during a marriage is presumed to be the legal child of the married persons and child custody rights do not have to be established (though that presumption may be challenged). Non-married person, including biological fathers, will have to establish child custody rights through a legal process call a paternity suit (or parentage suit).
Remember, a person does not have to have a biological connection to a child in order to have child custody rights to a child. Usually, the persons who might be able to establish child custody rights include: 1) a child's biological parents, regardless of whether or not the child's biological parents are married, divorced, or never married, 2) a person who takes care of the child, such as an adoptive stepparent, a grandparent, or other family member, regardless of biological connection to the child (i.e. uncle, aunt, sister, brother, etc.), 3) the state of California (juvenile dependency cases), and more. See Paternity Suit, Stepparent Adoption, Grandparents' Rights, and Juvenile Dependency Court.
Do I need court orders for child custody? A child’s biological and adoptive stepparents, whether married, never married, divorced, or legally separated, are generally equally entitled, and generally free, to make any informal or formal agreement as to how they will share physical and/or legal custody of their child, so long as that agreement is otherwise lawful and does not harm the child.
However, when a person is not presumed to be the child's biological parent, or where parents, biological or otherwise, cannot agree on how they will share physical and/or legal custody of a child, they may have to file a request with the family law court to establish child custody rights, child visitation, and/or child support.
Note: With some limitations, before a man can establish child custody rights to a child born to a woman with whom he was not married at the time of the child’s birth, he must first establish that he is the child’s biological parent. To do this, he must file a paternity suit in family court. Child custody rights may be filed simultaneously with divorce petitions, paternity suits and requests for domestic violence restraining orders (DVRO). On the other hand, a child born during marriage is presumed to be the child of the husband, but that presumption may be rebutted by DNA evidence in paternity suits. See Divorce Petitions, Paternity Suits, Domestic Violence Restraining Orders, and Fathers' Rights.
Types of Child Custody
Legal Custody: Legal custody refers to a parent’s right to make legal decisions about his or her child’s heath care providers, dental providers, education, religion, therapy, extra-curricular activities, travel, discipline, and associations.
Joint or Sole Legal Custody: Legal custody may be joint legal custody, which means that both parents share equal rights to make legal decisions for a child, or sole legal custody, which means that one parent has the exclusive right to make important legal decisions for a child. When parents share legal custody of a child the parents must work together to make legal decisions for their child.
Note: Sole legal custody may be granted to a parent when the other parent abuses a child, is unable to care for a child, is absent from the child’s life, or otherwise refuses to join in the legal custody of the child.
Physical custody: Physical custody refers to a parent’s right to have his or her child physically present and the right to reside with a child.
Joint or Sole Physical Custody: Just like legal custody, physical custody of a child may be held by two persons as joint physical custody, which means that the child lives with both legal parents an equal or significant amount of time, or sole physical custody, which mean that the child lives with one legal parent entirely, or at least the vast majority of time.
Note: When one parent has the majority of joint physical custody that parent is said to be the primary physical custodial parent. The non-primary physical custodial parent is said to have parenting time, also called child visitation.
Also, the parent who is more likely to ensure that the other parent has frequent and continuing contact with his or her child is usually the parent who is granted primary physical custody where joint legal custody is granted to both parents.
Temporary custody: Temporary child custody refers to a temporary status of child custody (physical, legal, joint, or sole) which is ordered by the family court until the court has an opportunity to make permanent orders based on relevant evidence offered at trial.
Temporary child custody orders arise in two circumstances: 1) where the court adopts the orders recommended in a family law court mediator’s report, but where one or both parents object to the mediator’s recommendation, or 2) where emergency child custody orders are sought for the immediate protection of the child (Ex Parte Hearings).
A child's parent may be granted any of the following: sole physical and sole legal custody, sole physical and joint legal custody, joint physical and sole legal custody, or joint physical and joint legal custody, depending on the circumstance.
Best Interest of the Child
Before the family court awards any type of child custody to a parent (physical, legal, sole, or joint), the court will consider the custody arrangement that is in the best interest of the child.
Note: The law presumes that the best interest of the child is to have frequent and continuing contact with both parents (joint physical custody) and that both parents share the legal rights and the legal responsibility of raising their child (joint legal custody); however, this joint legal and physical child custody presumption may be rebutted with any relevant evidence that shows joint custody in not in the best interest of the child.
Relevant evidence used to determine child custody orders includes, but is not limited to, evidence concerning the following: the child's safety, the child’s health, the presence of domestic violence, the presence of parental substance abuse, the child’s emotional ties to a parent, the child educational needs, the child’s home environment, the child’s age, the child’s need for continuity and stability, the presence of any alienation of the child by one parent towards the other, a mediator’s recommendation, the results of court ordered alcohol or drug testing, and/ or a psychologist or psychiatrist recommendation, and more.
Note: The immigration status of a parent is not generally relevant when the court considers child custody orders that are in the best interest of the child. However, if a parent is about to be deported from the United States, and there is a reasonable fear by the child’s other parent that the parent who is about to be deported will take their child to a foreign county, an emergency ex parte hearing requests for child custody might be filed in family law court (See Ex Parte Hearings & Emergency Hearings).
Child Custody Court Mediation
Child custody mediation is mandatory when parents do not agree on child custody issues and where the parents seek the court’s assistance and orders to manage their child custody rights. Mediation provides the parents an opportunity to attempt to resolve their child custody disagreements with the assistance of a licensed mediator who is employed by the court. The court prefers that parents come to their own child custody agreement, if possible and safe for their child, instead of having the court intervene in the parents’ decisions concerning their child.
If the parents are able to agree on a child custody at mediation, and the mediator finds that the agreement meets the best interests of the child, the mediator will draft a parenting plan. The parenting plan will then become the order of the court upon the family law judge's’ signature.
If the parents cannot come to an agreement as to child custody, the mediator will make a child custody recommendation for the judge (in San Bernardino and Riverside County). The recommendation of the mediator is usually, but not always, adopted as a temporary child custody court order pending a trial on the issue.
Filing for Child Custody Orders
Request for child custody orders, also called a request for orders (RFO), may be filed as a non-emergency, or as an emergency request (ex parte request).
Note: The ex parte request is reserved for emergencies only, and only where the health and/or safety of the child is in imminent danger and emergency custody orders are needed to prevent or mitigate that imminent danger. Common ex parte grounds include, but are not limited to, the presence or likelihood of domestic violence, child abuse, child neglect, substance abuse, and/or child abduction.
Important: Filing, or responding to, a request for child custody orders, can be very complicated. Mistakes are commonly made for parents who chose to act as their own attorney. Unfortunately, those mistakes can lead to unrecoverable lost time with a child. Also, keep in mind that family law judges are not lenient on the rules of court, procedure, or law, just because a parent is unaware of the rules.
Response to Child Custody RFOs
A parent who is served with a request for child custody orders has the right to respond to that request. In fact, if a parent does not respond to the other parent’s request for child custody orders, the court may make orders adverse to the non-responding parent’s rights. There are strict procedural requirements that must be met before a person may properly respond to another person’s request for child custody orders.
Modifying Child Custody Orders
If a parent wants to change established child custody orders, he or she must convince the court that there has been a significant change in circumstances that warrants new child custody orders. A significant change in circumstance usually includes, but is not limited to, any of the following: a parent moves, a parent’s job relocates, a child’s school relocates, a parent becomes incapable of caring for his or her child, a child's needs change, etc.
Note: When a parent seeks a change in child custody orders due to the other parent’s abuse or neglect the non-abusive/neglectful parent should file a modification of the child custody orders on an emergency basis. In fact, a parent who knows that his or her child’s other parent is abusive or neglectful to their child could face the loss of child custody rights for failure to protect his or her child from the other parent. This could lead to criminal liability and termination of parental rights through a juvenile dependency petition for removal of the child from the parents’ home. See Juvenile Dependency Court, & Criminal Child Endangerment or Child Neglect.
Contempt of Court
Contempt of court is the willful disobedience of a court order. If a parent willfully disobeys a child custody court order then the child’s other parent may either file an affidavit for contempt, or file a criminal complaint with the local police or district attorney’s office. A conviction for contempt of court carries harsh civil and criminal penalties, including the loss of child custody rights (See Contempt of Court).
Child Visitation & Child Support
Child visitation and child support requests are usually, but are not required to be, filed with a request for, or response to a request for, child custody orders (See Child Visitation & Child Support.
For more information on California child custody laws, contact our family law lawyers today. Our attorneys have handled thousands of cases involving child custody, including modification of child custody, mediation as it relates to child custody, and more. There is no charge for an initial in-office case evaluation and our lawyers are available six days a week to assist you. Call today!
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Selected Legal References for California Child Custody Law
FL 3002: “Joint custody” means joint physical custody and joint legal custody.
FL 3003: “Joint legal custody” mans that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.
FL 3004: “Joint physical custody” means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020.
FL 3006: “Sole legal custody” mans that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.
FL 3007: “Sole physical custody” means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.
FL 3010(a): The mother of an unemancipated minor child and the father, if presumed to be the father under Section 7611, are equally entitled to the custody of the child.
FL 3010(b): If one parent is dead, is unable or refuses to take custody, or has abandoned the child, the other parent is entitled to custody of the child.
Best Interest of Child; Considerations
FL 3011 (abbrev.): In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:
a) The health, safety, and welfare of the child.
b) Any history of abuse by one parent or any other person seeking custody against any of the following:
1) Any child to whom he or he is related by bold or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
2) The other parent.
3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
3020(a): The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding he physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.
3020(b): The Legislature find and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011.
3020(c) (Abbrev.): Where the policies set forth in subdivisions (a) and (b) of this section are in conflict, any court’s order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.