A divorce is a difficult and complex matter. Splitting up possessions and breaking up a home is not easy (check out this infographic about divorce in America). There are many important decisions to be made during the dissolution process. You should always consult your legal team to make sure you are making the correct decisions for everyone involved. When there are children, you must proceed with caution and care. Each state has different laws regarding divorce and child custody, so you should always be aware of these laws as they are relative to your children and to you. Here are a few basics about California child custody laws.
Custody laws in California
There are two types of custody, legal custody and physical custody. Legal custody concerns a parent’s ability to make important decisions about a child’s medical care, education choices, and religious upbringing. A court can order joint legal custody in which both of the parents would have an equal say in these important matters, or the court may award one parent the right to make these important choices.
Physical custody deals with the residency of the child or children and which parent will be responsible for the daily care of the children. There can be joint physical or one parent may be given sole physical custody. Joint custody means the children reside with both parents and there is a set schedule where both parents have substantial time with the child or children. With sole physical custody, the non-custodial parent usually has a right to visitation. The court will have to approve the visitation schedule. If one of the parents is deemed harmful to the child or children in some way, visitation rights can be denied to him or to her. The children’s interests are of the utmost importance in determining custody and visitation.
When one parent has sole custody and the other parent has visitation rights, a schedule needs to be developed for those visits. The parents can set this schedule, but then they must take it to the judge for approval.
If the parents cannot agree on the schedule, mediation may be required. This is when a third party, who specializes in visitation issues, counsels both parents to reach a fair and amicable agreement. Hopefully this mediation will resolve the visitation issues, but if it does not, then the visitation matter will go before the judge for him or her to decide the schedule.
If there is a custody battle over the children and the matter goes before a judge, the judge will have to consider many variables before making up his or her mind about the visitation. Some of these considerations are:
- The physical and the maturity age/level of the children
- The education and school location of the children
- The safety, health, and welfare of the children
- Whether either parent has any kind of history of domestic violence
- The current nature and amount of contact (as well as how that contact is currently handled) each parent has with the children
- Whether either parent has any record or habit of drug abuse, substance abuse, and/or alcohol use
- What the children want, if the children are physically old enough and mature enough to make a realistic and intelligent preference concerning which parent they want to reside with
Visitation and Custody Modifications in California
Visitation and custody rulings are almost always subject to modification. A child may get older and not want to travel back and forth between homes, one of the parents may move across the country, or one parent may suddenly experience a financial or physical disaster.
If a parent wants modification of an agreement he or she must file a motion and show the reasons for the desired modification. If the court thinks the reasons are strong and valid, the modification may take place. This modification could be for visitation or actual custody. There must be sufficient circumstances that are strongly supported for a modification to happen. The burden of proof will be heavier if a parent wishes to take sole custody of a child, as this is a very important and drastic decision.
Job Transfers and Out of State Relocations
While you may suddenly want to relocate or have been offered a major job promotion with a transfer, you will want to carefully consider the implications this move may have on your child, your legal custody, and visitation agreements. Having a split home can be hard on a child, having a home on each coast is very, very hard on a child.
By law, you may not move your child out of state without permission. There are legal procedures to follow. First, see if you can come to an amicable agreement with the other parent concerning the move. If both parties can agree, you can compose a list of changes in which the judge will need to check, approve, and sign off on.
If you cannot agree on your desired modifications outside of the court, you will need to go see your attorney and ask for new custody and visitation orders to be filed. There will be a court hearing in which the judge will decide if you and the child can move or not. It is not an easy or simple task to move a child from his home, so consider this option very carefully.
Be Careful with Custody: Know Your California Basics
Always know your legal rights, take care of your children and take care of yourself. If you are in a situation where divorce and/or custody issues are pending, use this guide about custody basics in California for help. For more specific questions you may want to visit the California Family Code online. If you need specific legal answers to your problems, come by and see us. We can look at your personal situation and figure out how to best help you proceed with these complex and very important custody matters.