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Help with decisions affecting your children

California law determines custody by what is in the best interest of the child. In most instances, however, the child’s best interests are served when the parents work together to find a custody solution. Turning the decision over to the court means that an unfamiliar person will decide who gets more time with the child, and where the child will live.

The parent who gets legal custody will make decisions regarding health care, education and religion. Physical custody is the term for the parent with whom the children will live. In many cases, parents have joint legal custody while one parent has primary physical custody.

Visitation, or partial physical custody, may also be part of the custody agreement. Generally, the court considers it is in the best interest of the child to spend time with both parents. E&L, LLP can assists clients and their family with custody and visitation arrangements that works for their unique circumstances.

Whether you’re in Beverly Hills, or anywhere in Southern California, contact our family law attorney to schedule an appointment for your free consultation, or contact us online, regarding your family law matter, and determine how we may be able to assist you.

Child Custody & Visitation: Questions & Answers

My partner and I live in different countries, and we have a child together. Which state controls our child custody case?

When parents live in different states, and a dispute arises as to which state controls, California courts are governed by the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA). UCCJEA ensures that each state has uniform laws that govern the treatment of their custody case. Facts that impact the determination of which state will ultimately make orders include where the child was conceived and born, the child’s home state, where the child lived for the most recent six months prior to filing, which state the child has the most significant connection to the child as well as other factors.

The UCCJEA is also pertinent where an emergency arises, or perhaps when a child is kidnaped by a parent, and absconds to another state or country. In the event the United States and another country are involved in custody matters, the rules contained within the Hague Convention will likely govern the dispute, if the other country belongs to the Hague Convention.

What types of custody are there?

There are 2 types of custody. Legal custody and physical custody.

How is child custody attained in California?

California courts will make orders pertaining to legal and physical custody of a minor child according to the child’s best interests. Legal custody determines each parent’s right to make decisions concerning the health, safety and general welfare of a child. Generally, parents share joint legal custody and have equal input concerning fundamental parenting decisions. Sole legal custody may be appropriate if there is domestic violence in the relationship.

Physical custody is the term used for the parenting plan determining where the child resides on a day to day basis. The primary custodial parent is the parent who cares for a child more than 50% of the time. Joint physical custody means that each parent spends 50% of the child’s time in their home. A parent with less than 50% of time with the child exercises visitation with the child. Visitation is granted to a parent unless it is detrimental to a child. The nature and frequency of the parenting time with the child varies in each case depending on the child’s unique needs, age, any numerous other factors.

I commonly hear the term “best interest of a child.” what is it?

California law seeks to ensure that children have frequent and continuing contact with both parents after the parents have separated, dissolved their marriage or ended their relationship. As a matter of public policy, the court is required to consider the best interest of the child when making child custody and visitation orders.

Generally, the court will consider the following factors when making child custody orders:

• The child’s health, safety and welfare;
• Any history of abuse by a parent seeking custody, including abuse against the child and the other parent;
• Alcohol or drug use and/or abuse by either parent; and
• The nature and amount of contact between the child and both parents.

I have custody of my child, and I want to move-away. What should I expect?

Often time’s parents either during a divorce, or a post-judgment, will have an interest to move-away from their current location. A move-away is a request by one parent to relocate either outside of the County, the State of California, or the United States. But there are a series of analysis that the court must perform before a move-away is granted. These are known as the traditional best interest analysis in determining custody, and visitation. Most move-away cases unfortunately will end-up in a trial where each parent (and possibly experts) will have the opportunity to testify.

The parent requesting to move-away with the minor child should expect to address the following issues with the court:

• The child’s stability and continuity of the current custody arrangement;
• The relocating parent’s level of attachment to the child;
• The distance of the relocation;
• The financial impact on each parent;
• The child’s age;
• The child’s relationship with both parents;
• The relationship between the parents;
• The child’s wishes;
• The reasons for the move;
• The non-payment of support by the stay-behind parent;
• Impact on parents mental stability if permitted or denied;
• Availability of special education and medical facilities;
• Parental animosity; and
• Other relevant factors.

I know my child wants to live with me. Can my child inform the court?

It depends. Although it may seem reasonable that a child’s preference in custody and visitation shall be given weight, in family court there are several restrictions. However, if the child is of an age where they can form an intelligent preference, and can express their desires in a meaningful way for the court, there may be an opportunity that the court may consider their requests. A child’s preference communicated to the court can be sticky, and may require the assistance of a private minor’s counsel.

I want to be in my child’s life, but it has been years since I’ve had visitation. Is there any hope?

Yes. In high conflict child custody cases, the court will appoint and use the services of a professional counselor or therapist who will guide the parent and the minor child to have a meaningful relationship. These services can last a few months and more, depending on the circumstances of each child.

I do not communicate well with the other parent; my emails and text messages go unanswered. Do I have any options?

Yes. You may request the court to order both parents to sign-up for a web-based software commonly known as “Our Family Wizard.” By using Our Family Wizard, parents will be able to communicate together regarding the children’s school, extracurricular activities, medical and dental appointments, and other important details concerning the child.

I was not married to the parent of my child. Can I still have custody and visitation rights? And how?

Yes. Although not married, parents can file a Uniform Parentage Action in order to initiate their request for custody and visitation orders. A Request For Order, along with supporting documents and evidence, must be filed with the court and properly served onto the other parent. A hearing will be held by the court, in which all evidence submitted by the moving party, and other parent, will be considered before rendering a decision. This is a temporary custody and visitation order until trial. There are also commonly actions to add or change a name on the birth certificate of the child in a paternity case, where either the last name or the identity of the father are unlisted.

What is a paternity action?

A paternity case is a type of family law case where children are born to unmarried parents and can arise where there is uncertainty or disagreement regarding the identity of the child’s biological father.

I am not sure if I am the father of the child. How do I get a DNA test?

It is common for the court to order a DNA paternity test as part of a paternity case. This is more common during a paternity case, as opposed during a divorce action. There are standards that must be met by the facility administering the test so that the results can be admissible to court.

I am the father of my children. Is it true that mothers are favored over fathers in divorce/custody cases?

No. In California, both parents have equal rights to have custody and visitation with the child, regardless of age, gender, or economic standpoint. You can expect that the court in your case will want to assure that the child has frequent and continuing contact with both parents if suitable under the specific facts of your case. There are a number of factors that can influence how a court will determine custody, and visitation.

Entrust Your Case to E&l, Llp

If you are experiencing a divorce case, or have child custody issues, contact E&L, LLP, at (213) 213-0000, for a free case evaluation and consultation.