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Child custody issues represent some of the most challenging elements of California divorce cases. Indeed, a significant percentage of post-divorce issues involve child custody and parenting time or visitation matters. If you have children and are contemplating a divorce, or if you have been through a divorce and now face child custody issues, you need to understand your essential rights and interests.
Custody Defined in California
There are two basic types of custody that come into play in a divorce or post-divorce matter. Legal custody is the ability of a parent to make major life decisions on behalf of a minor child. These include decisions pertaining to medical care, education, and religion. Physical custody involves the residential placement of a child.
Child custody can be jointly shared by the parents. One parent can have sole custody. A situation can exist in which parents share legal custody but one parent is granted sole physical custody of the child.
California Child Custody Standard
The state of California has established what is called the best interests of the child standard when it comes to custody and visitation issues. The best interests of the child standard requires a consideration of a variety of factors in making a custody determination. Examples of these factors include the overall physical and mental health of the parties, a consideration of the parent who historically has been the primary caretaker of the child, and the residential situation of each spouse.
Custody Agreement
In some divorce and post-divorce cases, the parties are able to reach an agreement regarding issues of custody and visitation. Courts typically encourage parents to come to an agreement regarding custody and visitation matters.
Even if the parties to a divorce or post-divorce matter reach an agreement regarding custody, the agreement must be submitted to the court for approval. An agreement regarding custody issues must be determined to be in the best interests of the child.
Contested Custody Litigation
At the heart of contested custody litigation is the presentation of evidence by both parents. Each parent presents evidence, including their own testimony, to support the contention that the custody arrangement each part proposes is in the best interests of the child. As mentioned previously, custody litigation can be highly contentious.
Because of the complexities of child custody law in the state, and the challenges of court procedures, a parent involved in a contested custody matter is wise to seek the assistance of a skilled, experienced California divorce attorney. Engaging a tenacious divorce lawyer, with a background in custody matters, best ensures that a parent will be able to present a strong case when it comes to the custody of a child.
Temporary Custody Order in Divorce Case
At the commencement of a divorce case in California, the parties file what are called motions for temporary orders. These include a motion for temporary custody. A temporary custody order is intended to be in force during the pendency of the marriage dissolution proceedings. The temporary order is replaced when a final divorce decree is issued. Although not required, oftentimes the custody arrangement set forth in a temporary order becomes the final order of the court at the conclusion of a divorce case.
Courts in California do consider the status quo associated with a child. This includes the status quo that existed prior to the divorce, but also what is put into place during divorce proceedings. Indeed, the status quo that existed prior to the commencement of divorce proceedings oftentimes plays a significant role in the formulation of a temporary custody order.
Enforcing a Custody Order
Unfortunately, with some regularity, one parent or another fails to follow the mandates of a child custody order. A custodial parent may somehow interfere with the other parent's visitation. Conversely, a noncustodial parent may not follow the court order regarding visitation.
A parent is able to file a motion to enforce an existing order regarding custody and visitation. A court has a variety of options available when it comes to a parent not complying with an existing custody order. Depending on the facts and circumstances at hand, a court potentially can do anything from alter the custodial arrangement in a case to admonishing the offending party.
Changing a Custody Order
Parents may reach a juncture at which they mutually desire to change an existing custody or visitation order. Provided the agreement reached between them to change a custody order is deemed in the best interests of the child, the court is likely to approve the change and make it the standing order of the court.
One parent may desire to change custody, and the other does not. In that situation, contested litigation can arise. In such a situation, the court will be called upon to make a final decision regarding a change of custody.
The process of changing an existing custody order commences with the filing or a motion to alter amend an existing custody order. The other parent has the right to respond to the motion and set forth reasons why the custodial arrangement should remain in place, without alteration.
The parent seeking to alter the custodial arrangement must demonstrate that there has been a material, or very significant, change in circumstances that warrants the alteration. The change in circumstances must be so significant that the best interests of the child are not met by the existing custodial arrangement.
Retaining a California Divorce Attorney
The first step in retaining the professional services of an experienced California divorce attorney in a child custody case is to schedule what is known as an initial consultation. During the initial consultation, legal counsel provides an evaluation of a child custody matter. Legal counsel will set forth options that might be available in a particular case.
A parent in need of custody representation will also be able to ask an attorney questions about the case, the law, and court procedures. As a general rule, a California divorce lawyer does not charge a fee for an initial consultation with a prospective client in a child custody case.
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