Child custody is often one of the most emotional and contentious issues parents face when they divorce or separate. Significantly, when parents part ways, a decision must be made regarding where the children will live and who will make decisions on their behalf. Custody can be determined in one of two ways — parents can enter into an agreement outside of court, or a judge can decide the outcome. But regardless of how a custody decision is reached, it’s crucial to ensure the best interests of the child are met.
To understand how custody is determined, it’s critical to be aware that there are two kinds of custody: physical custody and legal custody. Physical custody refers to where the children live and with which parent they reside. Legal custody gives a parent the authority to make decisions about the child’s life, including those concerning healthcare, religion, and education.
Either type of custody can be “sole” or “joint.” When a parent has sole legal custody, they are entitled to make decisions about the child’s life without the other parent’s input. Similarly, in a sole physical custody arrangement, the child lives with one parent, who is referred to as the custodial parent. In such cases, the non-custodial parent is given visitation rights.
When child custody is “joint,” both parents equally share the responsibility of raising their child. For instance, in joint legal custody situations, parents share the authority to make decisions for their child. When physical custody is joint, the child will spend nearly an equal amount of time with both parents. Courts favor joint custody arrangements whenever possible to help ensure that the child fosters a relationship and develops a bond with each parent.
There are several factors California courts consider when deciding a child custody issue. Notably, courts do not automatically grant custody to the mother or father — a judge is not permitted to make a custody determination based on a parent’s gender, marital status, disability, lifestyle, comparative income, or religion. Rather, a court would look at each parent’s ability to care for the child and apply the best interests of the child standard.
Custody matters are fact-specific and must be handled on a case-by-case basis. The court’s primary concern in custody cases is the health, safety, and welfare of the child. In deciding what is in the best interests of the child, a California judge would evaluate the following:
California public policy favors frequent and continuing contact between parents and their children, unless it would place the children in harm’s way. Assuming both parents can provide a stable and loving environment, courts strive to ensure both parents will be actively involved in their children’s lives. If the child is 14 years of age or older, their custody preferences must be considered. A younger child’s wishes may also sometimes be heard if the court deems it appropriate.
If one parent is given sole physical custody because the court determined it is in the child’s best interests, the other parent will be entitled to parenting time — commonly known as “visitation.” Courts will very rarely deny a parent visitation rights. In the event a court finds that a child’s welfare or safety might be jeopardized by spending time with a parent, supervised visitation may be ordered.
Child custody matters do not always need to be litigated in the courtroom. Parents can work out a custody arrangement between themselves and submit it to a judge for approval. Once the judge issues the custody order, it becomes legally binding. A parent may not unilaterally change a court order regarding custody without the consent of the other parent or the court. If custody must be modified, a new order will be necessary.
Mediation is a common alternative dispute resolution method used by parents who wish to negotiate a custody agreement without court intervention. It can also have major long-lasting benefits for the parents — and ensure the children are put first. Utilizing mediation can help parents remain amicable for the sake of their children. It can also be less stressful and more cost-effective than going through the litigation process.
During mediation, a neutral third party called a mediator guides the discussion and facilitates healthy communication between the parents. Not only can mediation be useful to reach a custody agreement and create a parenting plan, but parents can also learn valuable communication skills for their co-parenting relationship. Additionally, mediation can allow parents to be in control of the outcome of their custody case, rather than the court.
Whether you’re going through a divorce or separating from a partner, nothing is as important as the best interests of your children. If custody is disputed, it’s essential to have the guidance of a knowledgeable family law attorney who can protect your legal rights and the best interests of your children. The Law Offices of Rick D. Banks has over 20 years of experience helping clients with their child custody matters throughout Fresno and the surrounding area. To schedule a no obligation consultation, call (559)222-4891.