Children are usually the casualties of divorce or separation. Divorcing or separating couples even use them sometimes to get back at each other. It is sad there are indeed times when children are often seen as property or an object that has to be divided by exes.
Deciding on who gets the children has 2 forms:
- Legal Custody
This refers to the right to decide on all important matters regarding the child like where to enroll, medical care, welfare, where to live, religion, physical activities, travel, etc.
- Can either be joint (both parents can make the important decisions) or sole (only one parent has the right to decide).
- Physical Custody
The children will be living with this parent.
- Can either be joint or sole/primary. In cases of joint custody, one parent will be elected as the primary parent since children issues like going to school is impossible if a kid has to spend half the year with one parent and then the next half with the other.
- Also referred to as time-share.
- The arrangement on how parents will schedule time to take care of their children.
- Visitation is granted to the parent who does not have the physical custody of the child or has lesser time with the child. It is important for parents to agree on a plan or schedule in granting visitations to the child to avoid conflicts.
- Supervised visitation comes into place when the visiting parent is required to be accompanied by another person. This may be due to concerns about the safety or health of the child.
- No visitation is when a visit from the child’s parent would cause damage to the child (either emotionally or physically).
A parent may not relocate the child based on the presumption that he or she has custody. In order to do this, there must be a final judicial custody determination from the court. In other words, the parent who wishes to relocate the child must be granted custody prior to the relocation.
The child’s wishes are given due weight provided that he or she is of sufficient age and of sound mind. He or she should be capable of reasoning out and explaining why he or she prefers to live with one of the parents. However, each case is decided by the family court on a case-by-case basis. With that being said, there is some objective guidance.
Family Code 3042(c)
“If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interests. In that case, the court shall state
its reasons for that finding on the record.”
Family Code 3042(d)
“Nothing in this section shall be interpreted to prevent a child who is less than 14 years of age from addressing the court regarding custody or visitation, if the court determines that is appropriate pursuant to the child’s best interests.”
However, you must read the language carefully and understand that it is ultimately the court who determines whether the testimony of the child is in the child’s best interests. It is within their power to disallow the testimony.
Remember that this is always a case-to-case basis since what is good for one family may not exactly work out for the other. It is advisable to seek out the assistance of a good family law attorney if you do not understand the process.
Either parent has the right to get the custody of the children in California. Likewise, they can also have joint custody. The courts has the last say when it comes to awarding custody of the children but the judge will honor any agreement that the parents have reached in terms of custody and visitation.
If the parents are unwilling to negotiate, the judge will order them to meet with a counselor from Family Court Services.
Factors that are taken into consideration in a custody or visitation order
The best interests of the child are always considered the first priority in a custody or visitation order. In California, the judge may either award the custody to the mother or the father. In some cases, a judge may not award custody to either parent. This could be due to abuse, neglect or the parents are unfit to raise a child. The judge will either have the child placed for adoption or guardianship.
Things that could be taken into consideration are:
- The child’s age.
- The physical and emotional well-being of the child.
- The strength of the bond between the child and the parents.
- Is the parent fit to care for the child physically, emotionally, financially, spiritually, etc.?
- Evidence of drug dependence, abuse, and or domestic violence in the household.
- The possible effects of displacement on the child.
Any disagreement will be handled through mediation first by the Family Court Services to resolve the dispute. If parents are unable to come to an agreement or plan about their child’s custody after mediation, the case will be forwarded to a judge. The judge will then decide what is best for the child.
Generally, it is in the best interest of the child to remain with at least one of his or her parents. However, there are instances when the State decides to take a child away from the parent or parents when it deems necessary to do so. It is possible that the State took the child away from the care of an abusive parent, or if either parent is currently into drug or alcohol abuse or any other form of addiction that will be detrimental to the general well-being of the child.
The State assures that the best interest of the child is put first, especially to ensure the child’s “health, safety and welfare.” This is also the court’s primary concern when deciding cases on custody or visitation rights. The Family Code of the State of California states that:
Family Code 3020(a)
“The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children.”
If the courts order for a child to be taken away from the parent or parents, there is a great possibility that it has a just reason to do so. This is clearly stated in the following articles of the Family Code:
Family Code 3011
“In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:
(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking custody
(d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent.”
The law may seem complex, but it is put there for the benefit of the children. It is best to consult and work with a lawyer who is knowledgeable in issues regarding child custody and family laws to fully understand why the State might deny custody to a parent.