Child custody issues are clearly one of the more important issues in any legal dispute between parents. It is essential to have a competent attorney to represent you during this process. At Rallo Law Firm, our experienced family law attorneys will ensure that your rights are protected during a custody hearing.
When is Child Custody Determined?
If parents cannot agree to custody of a child, a custody order can only issued when an “underlying court case” has been filed by one of the parents. An underlying case can be a divorce proceeding, legal separation, annulment, domestic violence restraining order, paternity suit, local child support agency enforcement case, or a petition for custody and support of minor children. A judge makes the final decision but will usually approve the arrangement both parties agree upon. If the parents can’t agree, the judge will require the parents to meet with a mediator. If mediation does not work, the judge will decide child custody in a court hearing.
What are the Guidelines for Determining Custody?
California law states that a judge must give custody based upon the best interests of the child. In determining custody, the most important considerations include some of the following:
- Safety and welfare: The court’s primary concern is to ensure the child’s health, safety, and welfare.
- Frequent and continuing parental contact: The court prefers the child to have frequent parent/child contact and shared parenting between the parties.
- History of physical abuse: The court must consider any history of abuse by either parent, the person seeking custody, or the current spouse of either parent.
- History of violent crime: The court will restrict custody to a parent under the following conditions:
- The parent is a registered sex offender or has a child abuse conviction
- The child was conceived by rape: no person convicted of rape may be granted custody
- The parent was convicted of first-degree murder of the other parent
- The parent’s history of drug and alcohol abuse
- Stability and continuity of environment: The court will seek to establish a stable custody arrangement
- Separation of siblings: The court will prefer to protect sibling relationships and will ordinarily not separate them.
- The child’ s wishes: The court will consider and give due weight to the wishes of a child who is of “sufficient age and capacity to reason so as to form an intelligent preference as to custody.”
Types of Child Custody Orders
Child custody arrangements come in three different types.
Sole custody can consist of:
- Sole physical custody means the child resides with and is supervised by one parent, subject to the other parent’s visitation rights.
- Sole legal custody means that one parent is awarded the exclusive right to make decisions relating to the child’s health, education and welfare.
- Exclusive custody means that one parent is awarded both legal and physical custody. The non-custodial parent has secondary visitation rights.
Joint custody can consist of:
- Joint physical custody means that each parent has significant periods of physical custody, but does not mean that the child’s time has to be equally divided (one parent can be the primary caretaker).
- Joint legal custody means that both parents share the right to make decisions regarding the child’s health, education and welfare.
- Pure joint custody means that neither parent has sole physical or legal custody; both have authority to supervise the child and share in physical custody.
California Child Custody Attorney
When parents cannot agree on child custody, the court will make a determination as to which has custody and what type it will be. If you are facing a custody dispute, it is essential that you have an experienced attorney to represent you. At Rallo Law Firm, our family law attorneys will see that your rights are protected. If custody has already been awarded and there has been a change in your circumstances, we can also help to have a custody order modified.