Tags

, , ,

Do California Courts favor mothers in child custody cases? The answer may surprise you: No. Maybe before the age of the modern woman, the courts may have favored mothers just because they were female. Today, the courts have a legal standard they must follow–“the best interests of the child standard”.

If you are dealing with a custody case—either through a divorce or parentage action, there are some basic terms and legal concepts you must first understand. For instance, many people refer to “custody” to mean anything and everything related to custody–physical custody, legal custody, or visitation. Unwittingly, they may be referring to “legal custody” or “physical custody.” To understand how the court will consider your (or the other parent’s request for custody) for custody, you must first understand some basics.

CHILD CUSTODY

In accordance with California law, “child custody” has two parts—physical custody and legal custody. Either or both types of custody can be awarded to one parent (known as “sole custody”) or to both parents (known as “joint custody”).

PHYSICAL CUSTODY

There are two types of physical custody—sole physical custody and joint physical custody. “Sole physical custody” specifically means that a minor child will live primarily with one parent. For all practical and legal purposes, this is the child’s legal residence—as reported on school records, medical records, etc. “Joint physical custody” means that both parents will have shared physical custody. The goal of joint physical custody is to ensure that the minor child has frequent and continuing contact with both parents. Joint physical custody doesn’t mean that physical custody has to be exactly 50/50.

Whenever the court issues orders with respect to physical custody, the court will also resolve visitation issues. A proper court order will include the stated rights of each parent with respect to physical control of the minor child in such detail as to allow a parent deprived of control to include laws preventing kidnapping.

Situations where a couple can likely achieve 50/50 joint physical custody: parents live in close proximity to each other, resulting in the ability for the child(ren) to live with both parents and attend school such that this type of living arrangement does not have negative impact on the minor child(ren). For example, there are some parents that live within a mile of each other and have similar work schedules, resulting in the ability for both parents to achieve 50/50 physical custody as well as 50/50 visitation.

Situations where the court will give sole physical custody to one parent: situations where the parties are not married and have no ongoing relationship. For example, if father has disappeared or abandoned mother and child(ren); situations wherein the parties live so far apart as to adversely affect the best interests of the child(ren). For example, it is impossible for a child to live in two households if mom and dad live 100 miles apart.

LEGAL CUSTODY

Just as with physical custody, there are two types of legal custody—sole legal custody and joint legal custody. “Sole legal custody” means that one parent will have the legal right, as well as responsibility, to make decisions regarding the minor child(ren), to include, decisions relating to the health, education and welfare of the minor child(ren). “Joint legal custody” means that both parents share in the decision-making.

For example, if mother has sole legal custody of the couple’s minor child, she alone has the legal authority to make decisions regarding the type of school the child will attend, the type of religion the child will practice, the type of diet the child will eat, the geographic area the child will live. The mother is not required to obtain the consent of the father.

Situations where the Court will usually grant joint legal custody : 1) parents mutually agree to joint legal custody; 2) the parents are able to co-parent the child(ren) and reach agreements regarding the child(ren)’s best-interests; and 3) the court determines, after having carefully considered the facts and evidence, that it is in the best interest of the child(ren) to award joint legal custody.

Situations where the Court will usually grant sole legal custody to one parent : 1) parties cannot reach agreement on sharing legal custody; 2) there is only one parent in the picture—e.g. one of the parents has abandoned the children or disappeared; 3) the court, after carefully considering all facts and evidence, determines it is in the best interest of the child(ren) to award sole legal custody to one parent. Examples include: parents practice different religions and both strongly oppose the child being exposed to the other parent’s religion (Catholicism versus Judaism); parents fight about almost everything regarding the needs of the minor child, e.g. diet, schools, life-style, etc. In other words, if it is impossible for the parents to coordinate co-parenting, then the court will be forced to issue a court order, naming only one parent to have sole legal custody.

COMPLEXITIES OF CUSTODY

The court can award, or the parties can agree, on various types of custody: 1) sole legal to one parent and joint physical custody to both parents; 2) joint legal and joint physical custody to both parents; 3) sole legal to one parent and sole physical to the same parent; and 4) sole physical to one parent and joint legal to both parents..

Ultimately, the court’s ruling will depend on numerous factors affecting the best interest of the child(ren). A court of law will consider all relevant facts and evidence to determine how to award legal custody and physical custody.

Can an older child express to the court his or her preference? This is a common question asked by many parents. Many parents believe that a child should have the legal right to state their preference to the court and that the court should honor the child’s wishes. Here is the problem: first, a parent can easily influence a child to state a preference of one parent over another parent; court concerns regarding the child receiving rejection and/or retaliation against them by the non-preferred parent; the child experiencing feelings of trauma and/or guilt in stating a preference to the court; court concerns regarding enmeshing the child in the middle of the parent’s custody battle; and, finally, the child’s ability (or lack thereof) to make informed or intelligent choices. (For instance, a child favors the parent who gives them no curfews or rules over the parent who provides strictly-enforced structure and supervision; therefore, the child will ask the court that he/she live with the conservative parent.)

Notwithstanding the above, the court, under certain circumstances, will consider the child’s wishes as a factor. In other words, the court will look to ALL facts and evidence, along with the child’s preference, when reaching a determination on custody. Also, when considering the wishes of the child, the court will take into account the following: the child’s age, capacity to form an intelligent preference, looking also to the child’s level of sincerity, bearing, and degree of maturity. For example, some 13-year olds are more mature than some 17-year olds.

OTHER FACTORS THE COURT WILL CONSIDER:

• Child’s need for stability and continuity
• Emotional bonds
• Race
• Sexual conduct
• Sexual preference
• Religious practices
• Physical handicap
• Disparity of incomes
• Criminal history (if any) of the parent(s)
• Existing restraining orders
• Parents gender
• Siblings
• History of domestic abuse or violence
• History of sexual abuse

HOW I CAN HELP:

Maybe, the first place to start is a free 30-minute consultation. I am also available to provide coaching services in connection with your custody matter. Click Here for Services Provided (to include legal fees).

I am able to provide coaching in connection with custody matters. Also Click Here to review the services available.

Except for full legal representation, legal coaching is the next best thing! With coaching, I am able to provide you with tips, guidance, strategies and procedures to greatly improve your chances of procuring custody orders in your favor.

Examples of coaching include, but are not limited to;

• Explaining procedural rules regarding filing or responding to a custody motion
• Reviewing and explaining the legal significance and factual content of the documents filed with the court
• Explaining the key factors that the court looks favorably upon or, and just as important, looks down upon
• Coaching you with preparing your motion documents or preparing our response to motion documents
• Coaching you with preparing additional documents responsive to a custody motion, e.g. Declarations, Income & Expense Declarations, submission of relevant evidence
• Coaching you for your big day in court
• Coaching you in connection with post-hearing matters, such as the steps needed in connection with preparing the Findings & Order After Hearing

Services include:

• 30-minute free consultation
• Consultation Services—regarding all aspects of your custody matter
• Coaching Services.
• Document Preparation–Custom-made documents unique to your case, e.g. declarations, stipulations and orders, attachments to orders, complicated marital settlement agreements and so on.

Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting their own research on their particular legal matter. Finally, keep in mind that if you are not a California resident and/or your matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.

© 2012 California Family Law and Divorce.com Copyright Protected. All Rights Reserved.