Question

Who gets the children in a California divorce?

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Answer

Child custody often becomes one of the most emotional and highly contested issues in a divorce case. It is important to consider having an attorney guide you in obtaining a custody order, whether by agreement or litigation, because of the important and long-term implications. Custody issues can be complicated, and an experienced attorney can help you understand what your rights are, how the process will unfold, what the court system is like, and how to best present your case to the judge.

To begin, there are two different types of custody: legal custody and physical custody. Legal custody involves responsibility for decision making regarding the children’s health, education, and welfare. Physical custody involves the residence and day-to-day physical care of the children. Both legal and physical custody, or just one or the other, can be exercised by one parent or shared by the parents – this is referred to as joint custody. Joint, however, does not necessarily mean the children spend an equal amount of time living with each parent.

Ideally, you and the other parent can come to an agreement regarding custody once you decide to separate. If so, this agreement can be incorporated into your dissolution judgment. In most instances, the judge will approve of a custody plan agreed upon by both parents. 

However, if you and the other parent cannot agree on a custody plan, you will have to work through the court’s custody process. In California, once one parent files a motion regarding custody and visitation, the judge will typically make a temporary custody order based on the children’s best interests and what the status quo has been, and the parties will be referred to mediation. If you reach an agreement at mediation, it will be prepared into an order and there will be no further litigation necessary. However, if you do not reach an agreement, you will proceed through the process set up in your county that typically includes hearings, settlement conferences, possibly a custody evaluation, including psychological evaluations if necessary, and finally, trial. Before heading down this road, you should understand the child custody process and your rights in order to best protect your family.

In making an initial child custody determination, the judge will consider the children’s best interests, which involves many factors, such as the children’s health, safety, and welfare; whether there has been abuse by one parent against the other or the children; and whether one parent abuses drugs or alcohol. Unless there are serious health or safety concerns, the court typically believes it is in the children’s best interests to have frequent and continuing contact with both parents and for the parents to share physical custody. 

The judge may take the child’s preferences into account if the child is of an age and maturity level to express a meaningful preference. Sometimes the children’s views are communicated through a professional conducting a child custody evaluation or an attorney appointed to represent the child, although at times, a judge may interview a child in chambers.

As for third parties such as stepparents and grandparents, assuming a parent’s non-fitness is not an issue, “natural” parents are entitled to custody over these third parties as there is a presumption that parents have the greatest interest in the care and control of his or her children. Stepparents and grandparents, however, may be granted visitation rights in certain circumstances. 

Usually, the primary concern of parents when they separate is the welfare of their children. A lot of questions will undoubtedly arise as you face a child custody dispute. For example, is it possible for me to retain full custody? Is it possible for the other parent to relinquish their rights altogether? Who will pay for what expenses? How and when will they pay? Who will pay for vacations? Who will get the holidays with the children? Can I take my child on a vacation on a whim? What if I need to move away? Naturally, many questions will arise during the course of determining custody arrangements, and having an experienced family law attorney guide you through the process can prove to be invaluable. It is important that you understand the implications of your child custody agreement and arguably even more importantly, that your order is clearly written and specific.

At Lonich & Patton, our attorneys have decades of experience handling complex family law matters and we offer both full-service and consulting options. We have multiple Certified Family Law Specialists (as certified by The State Bar of California Board of Legal Specialization) and have over 75 years of combined experience in handling issues involving divorce, child custody, spousal support, child support, property division, and domestic violence. Whether you decide to retain an attorney or not, it is best, at the very least, to consult with one before you begin your divorce process. Often, self-represented litigants will find themselves in unfavorable situations that could have easily been avoided by an experienced divorce attorney. Lonich & Patton offers a free, 30-minute consultation, and we welcome you to contact us for a risk-free evaluation of your situation and how to move forward toward your best interests during this difficult time. Resolving family law matters is often highly emotional and during these trying times, the attorneys at Lonich & Patton are here to help you protect your family, your assets, and your future. Please contact us at (408) 553-0801 – we will be more than happy to meet with you.

Answered 11/08/2013

Disclaimer: This answer was provided by an attorney selected to Super Lawyers, and is intended to be an educated opinion only. This answer should not be relied upon as legal advice, nor construed as a form of attorney-client relationship.

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