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Custody
When it comes to the matter of a marriage dissolution, the most critical, and emotion-packed, area is that of child custody. Disputes often range on both side and extended families and grand-parents are often in the mix.
Regardless of how highly charged the issue, it is the Court who is customarily charged with determining what is in the best interest of the child. In any contest between two parents, the outcome is always determined by what is in the best interest of the child, whether primary residence is the be with the mother, or with father, and what contact the child should have with the non-primary custodial parent.
Both parties are encouraged to find a solution that is in the best interest of the child and the Court will generally ask to first consider the status quo. Both parties may establish times and methods of shared-parenting with the end result for the child's best interest. The Court will generally assume that the pattern of conduct and sharing entertained and practiced by the parents prior to filing for divorce is at least a valid starting point. Although the pattern previously established may not be perfect, and may need adjustment, the Court feels safe in adopting that plan because it is a plan which the parents have tacitly, if not expressly, previous agreed upon.
Often times, for good reason or bad, psychological evaluations and more in depth studies are asked to be conducted. In the case of a psychological evaluation the evaluator submits the parents and sometimes child(ren) to a series of psychological tests and clinical observations. The initial determination is to seek whether either parent suffers from any psychological dysfunction. The psychologist will also look into the history of the child's life and the parenting plan that has existed over time, again, giving the most weight to the more recent effective parenting plan. Only if there is a valid reason and a substantial basis for dramatic change, will a psychologist recommend anything other than the more recent successful parenting plan.
In addition, the Superior Court provides a mandatory mediation service which assists all parents who have a dispute regarding custody and visitation. Attorneys are generally not allowed to be present during the custody and visitation mediation when conducted through the auspicious of the Superior Court. An attorney's involvement in the process is to assist the parent in becoming ready for the mediation appointment and focused on the best interest of the child(ren). An experienced attorney can be of great assistance in the preparation for the mediation conference. Yet, the attorney's true contribution will be in formalizing any agreements reached and/or litigating any dispute unresolved through the mediation process.
The Difference Between Physical and Legal Custody and Sole Legal Custody
Physical custody refers to the parent, parents or grandparent(s) who have the physical responsibility for the care of the child. Joint physical custody means that each of the parents shall have significant periods of physical custody, although parents can share joint custody even if the timeshares are disproportionate, such as an alternate weekend schedule for one parent and the other parent having the rest of the time. Sole physical custody means that one of the parents has the child(ren) the majority of the time as well as all of the responsibilities of raising that child.
Attorneys will often avoid the use of either sole or joint custody and use the term "primary physical custody" to designate the parent who has day-to day care of the child. Because California law does not have any designation known as primary physical custody this sometimes causes problems in a move-away case.
Legal Custody refers to the parent(s) who will have the decision-making authority relating to all aspects of the child(ren)'s life…Their education, the health and welfare, religion and any other critical aspects in the raising of the child(ren). Joint legal custody means that both parents have the authority to make decisions regarding the child's education, health and welfare, religion, when the child(ren) get a driver's license, etc.
Sole Legal Custody means that one parent may make all of these decisions.
Can I get joint custody of my children?
California has a "joint custody" law that encourages judges to award joint "legal custody" to parents. This means that both parents have a right to make decisions concerning their children and that they both must agree on major decisions affecting the child's life. This can include education, medical treatment and religious training. The court also has the power to award "physical custody" to one or both parents. Physical custody determines where the child actually lives, and it is most common for the children to spend most of their time with one parent. The parent who does not have primary physical custody is usually granted "secondary physical custody" or visitation rights.
It is most common for the non-custodial parent to have specified periods of time consisting of alternating weekends, one evening per night and one-half of the children's school vacations. In some cases, the parents agree to "reasonable" secondary physical custody or visitation rights, which means that the parents agree on the times when the non-custodial parent will have the children.
If I have custody of our children, can I relocate with them to another metropolitan area?
In some cases, a judge will issue orders preventing either parent from changing the residence of the children from a specified geographical area. Locally, it is not uncommon for a judge to restrain the parents from removing the residence of the children from what are referred to as "the seven Southern California counties." Such orders are common where both parents have a considerable amount of time with the children and removing them from the metropolitan area would be disruptive to the children an d their development.
Over the last ten years, courts in California have been dealing with the right of a custodial parent to move with the children to another metropolitan area or out of state. The California State Supreme Court recently decided a case that settled this controversy. Under the new rule, the custodial parent may move away, so long as doing so is not detrimental to the child. If such a move is potentially detrimental, the Court will analyze the totality of all circumstances for the family and determine what is in the "best interests of the child".
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