Child Custody and Divorcing Parents

When a married couple has come to the point that their differences are irreconcilable, they may either seek dissolution or legal separation. When the couple has minor children, they are often at the forefront of consideration.

Basis of Custody

California courts seek to award custody of the children based on the “best interests of the child”. Family law courts generally begin the consideration with both parents at equal footing, without any preference for the parent’s gender, with two guiding policies to consider a child’s best interests: [1] The court’s primary concern is the health, safety, and welfare of the children and [2] Children benefit from frequent and continuing contact with both parents.

A judge can take into account any factor relevant to parenting, which may differ for each individual case.

Health, Safety, and Welfare

A judge can consider, for example, one parent engaging in criminal activity, one parent’s history of domestic violence, one parent being physically or sexually abusive even if it does not result in a conviction, illegal drug use by one parent, and alcohol use by one parent. Some of these factors may require independent corroboration from a reliable source.

Child’s Preference

If a child is mature enough to form an intelligent opinion, a judge may give weight to the child’s preference.

Parental Encouragement of Relationship with Other

A judge can consider whether one of the parents is more likely to encourage a positive relationship with the other parent rather than interfere with that parental relationship.

Continuity and Stability

A judge will try to keep siblings together. A judge will also attempt to maintain established patterns of care.

Legal Custody vs Physical Custody

Legal custody is the authority to make parental decisions; such as those regarding a child’s health, medical care, education, religious upbringing, and welfare. The court may order joint legal custody (both parents have equal rights) or sole legal custody (only one parent has the right).

Physical custody is where the child lives and who is responsible for daily childcare. The court may order joint physical custody between both parents (live with both parents almost equally, according to a set schedule) or sole physical custody to one parent (live mostly with one parent who is responsible for daily care).

California law prefers both joint legal and physical custody if both parents can agree to that arrangement. If the parents do not agree, the court has very broad discretion to design a parenting plan that is in the best interests of the child.

Child Support

The main factors that a court generally considers when determining child support are the number of children, tax deductions available to each parent, how much each parent earns or can earn, and how much time each parent has primary responsibility of the children. The formula used to determine support is the same in most California courts.

To discuss your specific situation, and the potential child custody arrangement in your divorce, contact the expert family lawyers at Walzer & Melcher today.

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