California child custody laws relate to the rights and responsibilities of parents when taking care of their children. Child custody includes legal and physical custody. Visitation refers to how parents intend to share time with their children. Below are a list of California child custody and visitation frequently asked questions we receive. Read on to learn more.
1. How can I obtain a child custody and visitation order?
To obtain an emergency or temporary child custody and visitation order during your divorce, you must file a Request for Order. Prior to filling an RFO, you should work with the other parent and settle any custody and visitation disputes outside of court. Going to court can be costly and you may not agree with the judge’s decision.
An emergency custody order, also referred to as an Ex Parte order, is common in California. Unfortunately, parents and lawyers often abuse Ex Parte child custody requests. A request for an emergency child custody and visitation order is appropriate when there is a serious threat of child abduction, or other dangerous circumstances in which a child faces an imminent risk of harm. A request should not be used to expedite the hearing process. Instead, a party should file a request for an earlier hearing date. Contact San Diego Esquire for more information on how to obtain a child custody and visitation order.
2. Do I have to attend mediation?
Yes. When you file a child custody RFO, the court will order both parents to attend mediation through Family Court Services. Attending mediation is mandatory. If you fail to attend, the court will sanction you.
Mediation helps parents resolve child custody and visitation disputes. The mediator will provide the court with a recommendation as to what the judge should order. The judge will take into consideration the mediator’s recommendation; however, the judge will not necessarily adopt the recommendation.
3. Can my ex-spouse take my children away from me?
No. It is common for a former spouse to make threats regarding child custody and visitation. If your spouse threatens to take your children away from you, you should file for a temporary custody order immediately.
While married, the law will assume both parents have equal rights to their child. This means without a court order or a pending divorce, law enforcement will not interfere with marital disputes. Once a divorce is filed, you can request an emergency custody order based on your spouse’s threats to kidnap your children.
4. Will the court grant my child’s mother full custody?
No. Despite common myths, courts do not always grant mothers full custody. Both parents share equal rights when it comes to parental custody. One parent may obtain full custody if the court determines that the other parent is unfit. Nevertheless, the court may allow the unfit parent to have supervised visits with his/her child. California courts encourage the active role of both parents in their child’s lives. Rarely is sole legal and physical custody granted to one parent without just cause.
5. What are the different types of custody?
The two types of custody are physical and legal custody. Legal custody refers to a parent’s right to make decisions regarding his/her child’s education, religious practices, and medical care. Physical custody addresses who the child will reside with on a permanent basis. The non-custodial parent will have the right to visit his/her child. The court may grant sole or joint custody (the latter is favored). Sole custody means that one parent has rights only. Joint custody means both parents share in the rights of the specified form of custody.
6. What does child custody and visitation status quo mean?
Child custody and visitation status quo refers to the schedule parents have followed for a significant period regarding their children. The court will examine the status quo and use it as a basis for establishing a custody and visitation order. Strong arguments and supporting evidence must be presented to persuade a judge to grant a child custody order away from the status quo.
There are two exceptions to the status quo under California child custody laws. The first exception addresses a temporary absence or relocation of a parent from the family residence. The second exception deals with military service and its impact on child custody.
Under California family law, a judge cannot consider one parent’s temporary absence or relocation from the home. The absence must be for a short duration and the parent who is absent must demonstrate an interest in obtaining custody and visitation. The parent must demonstrate that he/she made reasonable efforts to maintain contact with his/her child and that his/her behavior is not consistent with abandoning his/her child.
In regards to military service, if a parent’s absence from his/her child is caused by a military order of absence, the court cannot modify a child custody order based on a change in circumstances. If a parent goes away on military orders and returns, his/her custody or visitation rights will not be revoked. A temporary child custody order can be granted prior to the parent departing for duty.
7. How does domestic violence and child abuse impact custody?
If there is a history of domestic violence and child abuse, a parent will face many challenges in obtaining a custody and visitation order. A parent that is found to have committed domestic violence must overcome the presumption that it is not in his/her child’s best interest to share joint custody with the other parent.
It is common for one parent to falsely accuse the other parent of committing domestic violence. A party can request a temporary restraining order without advanced notice (Ex Parte). The Family Court will hold a full hearing on whether the allegations are true or not. If there is a finding that a parent perpetrated domestic violence against the other parent or children within the past five years, a presumption will arise in which the parent who committed acts of domestic violence should not be granted joint or sole legal or physical custody of the child.
8. What is California’s best interest of a child standard?
California’s best interest of a child standard grants the court broad discretion when ordering child custody and visitation. A court will grant a child custody and visitation plan that is in the child’s best interest. This standard refers to the child’s health, safety, welfare, and education.
9. How can I obtain an independent child custody evaluation?
The family law court has broad discretion to appoint an independent child custody evaluator. An independent child custody evaluation involves the psychological testing of both parents, interviews with the parents and children, witnesses, and an analysis of both parent’s medical, psychiatric, or psychological history. This information forms a confidential report for the family court and both lawyers to review in consideration of resolving a child custody dispute. This report is used as a recommendation to the judge. Judges take this report very seriously and often side with the findings.
10. Can I obtain custody with my criminal history?
Yes. You can obtain a custody order even if you have a criminal background. However, if you have been convicted of domestic violence, child abuse, or are a registered sex offender, it may be difficult to obtain a custody order.
For more information about California child custody, visit our San Diego child custody attorney page. We can help you obtain a child custody and visitation order. We provide legal document preparation, mediation, and litigation services to San Diego County residents. Contact us today to for a consultation.