Question

How is child custody determined in California?

Christopher R. Abernathy - Family Law - Super Lawyers

Answered by: Christopher R. Abernathy

Christopher R. Abernathy, APLC
Rancho Cucamonga, CA
Phone: 909-484-7667
Fax: 855-272-2889

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Answer

When children are involved in a couple’s divorce, the question of child custody is one of the most important issues to be decided. Due to the emotions involved, many people seeking divorces have questions about how the court will decide this important question. 

The answer to this question depends on whether you have a child custody judgment. If you already have a judgment, the court will not change the existing custodial arrangements unless there has been a significant change of circumstances. Basically, this means that you or your child’s circumstances have changed to such an extent that a new custody order is necessary in order to protect your child’s best interests. 

What constitutes a “significant change in circumstances” can be a difficult question. However, California courts have often held these reasons as constituting a significant change in circumstances: 

  • A significant change in a parent’s work schedule
  • A relocation of a parent
  • Substance abuse or domestic abuse issues involving a parent
  • The child’s preference of spending more time with the noncustodial parent 

As this is not an exhaustive list, it is important to contact an attorney for additional advice on what the court looks for when determining whether your situation would constitute a significant change of circumstances. 

How custody is decided when there is no child custody judgment 

If you have just initiated divorce proceedings, more than likely, you do not already have a child custody judgment. In these cases, California courts seek to decide custody cases in a manner that would reflect the best interests of the child. When deciding this question, some of the primary factors that the court considers include: 

  • The age and health of the child
  • The ability of the parents to care for the child emotionally, financially and physically
  • The nature and amount of contact of each parent with the child
  • Whether there is a history of family violence or alcohol/drug abuse
  • The child’s ties to their school, home and community 

When deciding custody matters, courts look at the big picture when determining what the child’s best interest is. Generally, the courts decide this issue in a manner that will ensure continuity and stability in custodial arrangements. Additionally, the courts cannot make custody decisions based solely on a parent’s marital status, sexual orientation, physical disability, religion or lifestyle. If your child is of sufficient age to form an intelligent opinion, the court may consider the wishes of your child in determining the issue of custody. 

In cases where the court finds that awarding custody to you or the other parent would be emotionally or physically harmful to your child, it may award custody of your child to a third party. This is called a guardianship. In these cases, the court may grant you and your spouse visitation rights. 

As a parent, you may feel powerless, given that decisions about your child’s future and best interests are being made by the court instead of you. However, an experienced family law attorney can help you present evidence supporting your wishes to the court and pursue legal remedies in the event the court goes against those wishes.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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