Child Custody

A Child Custody Overview

In 1965, American family law judges only granted divorces based on:

  • Cruel treatment,
  • Adultery, or
  • Other marital fault

Most fathers had almost no contact with their children after the divorce. Fifteen years later, California led the way with the no-fault divorce law and joint custody law.

Marriage dissolution laws have changed a lot in the last fifty years, but the underlying issues are still largely the same. That’s because family members need emotional and financial security after the marriage ends. 

Child Custody and Child Visitation

By the time most divorce petitions are filed, the parents are separated. According to child custody lawyer Hossein Berenji, “That fact is important, because the judge normally holds a temporary hearing about two weeks after the spouses file a petition.” At this proceeding, a status-based custody presumption (the children should probably stay where they are now) has replaced the old gender-based custody presumption (the children should probably stay with their mother). There is an old saying that “possession is nine points of the law,” so the parent with primary custody is likely to keep it at this stage.

That being said, there is a difference between a presumption and a determination. There are several likely custody arguments in a temporary hearing:

  • Military Service: The Family Code does not allow a judge to make custody or visitation decisions based on gender, sexual orientation, disability, military service, age, and several other items. So, if Father had to leave the children in Mother’s care during a deployment, Mother cannot use Father’s absence against him, at least in most cases.
  • Temporary Absence: Similarly, if Mother left the residence for a few weeks, Father cannot typically use her absence against her. This is especially true if Mother was a possible domestic violence victim.
  • Physical DangerIf the court believes that a parent will put the child in danger, then the court will may temporarily award the child to the other parent.

In that third scenario, witnesses are key, and they must be able to testify about the physical interaction between parents and children.  

Most judges order social services investigations in contested cases and give their final reports considerable weight. By the time this study is complete, discovery is usually at least mostly complete as well. So, there is much more evidence available in the later stages of a marriage dissolution than in the early stages. During a motion to modify the temporary orders or during the final trial, the court will consider additional factors involved in a best interest determination, including:

  • Children’s Preference: California law does not prescribe an age limit for a child to express a custody preference to a judge. If the children are older than about 12, most judges will consider their preference. The court may also appoint attorney ad litems to represent the children and be a voice for them during marriage dissolution proceedings.
  • Health and Safety: At this point, the judge will consider more subtle items; for example, Mother may not enforce good personal hygiene habits or Father may let the kids stay up too late.
  • Co-Parenting: In practical terms, a custodial parent must be willing to make sacrifices to foster a relationship between the non-custodial parent and the children and refrain from making any disparaging remarks, either in person or on social media.

These same best-interest factors apply to visitation. Some states are questioning the joint custody model, but it is deeply engrained in California. Typically, visitation is on an every-other week schedule if the parents live in roughly the same neighborhood and a 2-2-3 schedule (Mon and Tues with Parent A, Wed and Thurs with Parent B, Fri-Sun with Parent A, and then the two parents swap places) if the parents reside farther apart.

California law restricts visitation, and even forbids it entirely in some extreme cases. For example, if the visiting parent is convicted of domestic violence. If there are safety concerns, judges often order supervised visitation. In the event that the parents can’t get along, judges often order exchanges to take place at neutral locations. If you need more information, speak with a local child custody attorney.

Child Support

Whereas custody and visitation are subjective determinations, child support is typically objective. In most cases, the California Child Support Guidelines apply. The guidelines take into account:

  • Both parents’ income,
  • Number of children,
  • Timeshare arrangement,
  • Any stepchildren, and
  • Extraordinary expenses, like daycare costs.

California is an income-shares child support state that bases child support on the resources the children would have had if their parents remained married. After determining a total obligation, the judge divides it proportionally between the parents based on their individual income.

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