Child custody is a right that belongs to the parents. The main concern in any child custody proceeding is the best interest of the child and the child’s frequent and continued contact with both parents. There are many factors that are considered within the courts to determine the child’s best interest. Also, there are few different child custody options the court can issue.
Child Custody in California
Child custody refers to the care and major decision making aspects of the child. Child custody can be broken down in different forms of custody.
Types of Child Custody
There are a few different types of custody: sole custody, joint custody, "divided or split" custody, and nonparent custody. However, there are significant break downs within sole and joint custody orders.
Sole Custody
Under a sole custody order there are three options: legal and physical custody, sole physical custody or sole legal custody. Legal and physical custody can be best described as exclusive custody. This type of custody order gives one parent the primary physical control of the child, with the right to make the major decisions regarding the child. These decisions include the child's residence, health, education, and welfare. Even so, an order granting one parent exclusive custody does not terminate the noncustodial parent's parental rights. The noncustodial parent will have secondary visitation rights as awarded by the court and maintain a right to seek modification of a custody order based on the proper showing of changed circumstances.
Sole physical custody grants exclusive physical custody without exclusive legal custody. The result is the child resides and is supervised by one parent. The other parent would still have visitation rights. As for matters affecting the child, the custodial parent does not have sole-decision making power. Both parents have a say in all matters affecting the child.
Sole legal custody gives a parent the exclusive right and responsibility to make the major decisions regarding the child. These included the child's health, education and welfare, but without sole physical custody that parent does not control the child's residence and supervision.
Joint Custody
A joint custody order can be pure joint custody, joint legal custody, or joint physical custody. With a pure joint custody order, no one parent has sole physical or legal custody. Both parents share authority to control and supervise the child, as well as, sharing the child's physical presence.
Joint legal custody orders grant both parents the right and responsibility to make the major decisions regarding the child's health, education, and welfare. This type of order can be granted without the court granting joint physical custody, therefore, the child would reside with and be under the supervision of only one of the parents.
Joint physical custody orders award both parents with "significant periods" of physical custody. The physical custody is shared in a way that assures the child has frequent and continuing contact with both parents. However, this does not mean that the child's time has to be equally divided between each parent. Thus, one parent can still be considered the primary caretaker.
Divided or Split Custody
A divided custody order basically means that each parent is custodian of the same child for different specified periods of time. As for a spilt custody order, it involves parenting plans for several children. Each parent has custody of at least one child at all times and both parents will have visitation rights to the noncustodial child. For instance, the mother could be awarded custody of the daughter and the father awarded custody of the son.
Nonparent Custody
A nonparent custody order is an order granting custody to someone who is not the child's actual parent. This type of order is subject to strict standards. At most, the parents will have reasonable rights to visitation.
Procedural Process to Obtain Child Custody in California
A parent's fundamental right may not be interfered with without due process of law. This involves the right to a trial on the issues raised by the petition, the right to confront and cross-examine witnesses, and the right to force the attendance of witnesses.
In a child custody proceeding, the court making the determination must have jurisdiction over the child. A California court has jurisdiction to make a child custody determination only if one of the following applies: California is the child's home state, there is no home state, or a court of the home state has declined to exercise jurisdiction, and there is a significant connection with California; all states having "home state" or "significant connection" jurisdiction have declined to exercise jurisdiction; no other state's court would have jurisdiction under any of the above bases.
The court, in determining the process that is due a party in a child dependency proceeding, evaluates three elements: (1) the private interests at stake; (2) the government's interest; and (3) the risk that the procedures used will lead to an erroneous decision.
Parental Visitation Rights for Noncustodial Parent in California
In making child custody orders, the court should grant reasonable visitation rights to a parent unless it is determined that the visitation would be detrimental to the best interests of the child. The court has discretion to grant reasonable visitation rights to any other person having an interest in the welfare of the child.
In situations where a protective order has been directed to a parent, the court should consider whether the best interest of the child would require any visitation to be limited to situations in which a third person is present. Also, it should be consider whether visitation should be suspended or denied.
In cases where domestic violence is alleged and emergency protective order, protective order, or other restraining order has been issued, the visitation order, if granted, should specify the time, day, place, and manner of transfer of the child. This is necessary to limit the child's exposure to potential domestic conflict or violence and to ensure the safety of all family members.
If the court finds a party is staying in a domestic violence shelter or other confidential location, the order for time, day, place, and manner of transfer of the child for visitation should be designed to prevent disclosure of the location.
Child Custody Decisions in California
In California, it is public policy that the health, safety, and welfare of the child be the court's primary concern in determining the best interest of the child when making custody decisions. Also, it is public policy to assure the child has frequent and continuing contact with both parents after the relationship has ended and to encourage the parents to share the rights and responsibilities of caring for the child.
In custody proceedings, the court is required to make a determination based on the best interest of the child. The court should consider the following:
1. The health, safety, and welfare of the child.
2. Any history of abuse by one parent or any other person seeking custody against any child to whom he or she is related or had a caretaking relationship; the other parent; or a parent, current spouse, or cohabitant, of the parent seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
3. The nature and amount of contact with both parents
4. The habitual or continual use of controlled substances or habitual or continual abuse of alcohol by either parent.
However, if the parties make an agreement in writing or on the record regarding custody or visitation, these provisions will not apply.
In California, there is an order of preference in how custody should be awarded according to the best interest of the child. First, custody should be awarded to both parents or to either parent. In making this order, the court should consider which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent. The parents sex should not be consider a factor in custody decisions. Second, if neither parent is awarded custody, custody should be awarded to the person the child has been living with in a wholesome and stable environment. Third, to any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
Modifying Child Custody Order in California
Child custody orders are generally modifiable throughout the child's minority because there is no permanent finality to custodial award of a minor child. The court will have to find that the modification is necessary or proper in the child's best interest. Therefore, there has to be some change in circumstances or some new facts have been discovered that were not previously available.
If the parent's have an agreement which interferes with the court's power to render or modify a custody order, the agreement is void and unenforceable.
There are circumstances when a child custody modification has no basis to be argued before the court. If the parent who has custody dies during the child's minority, the surviving parent automatically becomes entitled to sole custody provided there is no clear and convincing evidence that such custody would not be in the child's best interest and would be detrimental to the child. All rights will shift to the surviving parent. Since there is only one parent to assert parental rights, the original order is no longer an issue. The same is true if the noncustodial parent dies. The child custody order can no longer be modified.
Enforcement of Child Custody Order in California
There are two options available when a parent is looking to enforce a child custody order. The option used will be determined by the level of interference with the custody of the child. If it is a minor interference, one should file for contempt of court. On the other hand, if it is believed the parent is intentionally withholding or trying to kidnap the child, one should file for an emergency hearing.
In California, a parent who is found in contempt of court of a child custody order can be held in contempt and imprisoned, fined or ordered to perform community service.
In drastic situations, a petition will be filed seeking enforcement of the child custody order. The parent who is filing the petition may then file an application for the issuance of a warrant to take physical custody of the child. The court will determine if the child is immediately likely to suffer serious physical harm or be removed from the state and if so, the warrant will be issued.
Noncompliance with Child Custody Order in California
A parent who does not comply with a child custody order can face civil and/or criminal contempt. In civil contempt cases, the court will prescribe a particular punishment. If it is a first finding of contempt, the court must order the person to perform up to 120 hours of community service or serve up to 120 hours of imprisonment. If it is a second finding of contempt, the court must order the person to perform up to 120 hours of community service, in addition to ordering imprisonment up to 120 hours. If it is a third finding or subsequent fining of contempt, the court must order both (1) imprisonment for up to 240 hours and up to 240 hours of community service; and (2) the payment of administrative fee by the person, not to exceed the actual cost of the persons administration and supervision while assigned to a community service program.
The criminal contempt charges will come into play if a parent tries to kidnap the child and move away in violation of a court order.
Grant of Joint Custody in California
When both parents agree to joint custody, the court will presume joint custody to be in the best interest of the child. However, if the parents do not agree, the court will use its discretion in determining what is in the best interest of the child. If joint custody is determined to be in the child's best interest, regardless of the parent’s opinion, joint custody will be awarded.
Custodial Parent Wants to Move from California
The parent who has been awarded sole physical custody has the presumptive right to change the child's residence, but this right is not absolute. Even so, in some cases the parent may be required to give advance notice of the relocation to the other parent.
The court will not interfere with a parent’s decision to move away with the child unless it is determined that the move would be detrimental to the child. The noncustodial parent bears the burden of showing that the proposed relocation of the child would cause a great detriment which requires a reevaluation of custody. The court must then perform the task of determining whether the change in custody is in the best interests of the child.
There are certain factors the court will consider in its determination if the child would suffer a detriment from the relocation, and whether custody should be modified. These factors include:
1. The child's interest in stability and continuity in the custodial arrangement
2. The distance of the move
3. The child's age
4. The child's relationship with both parents
5. The relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the child interests above their individual interests
6. The child wishes if they are mature enough to make that inquiry appropriate
7. The reasons for the proposed move
8. The extent to which the parents currently are sharing custody
In a situation where the move proves to have some effect, the moving parent has the burden to prove that the termination of the other parent's custody/visitation rights would be in the child's best interest.
Child’s Decision in California
The child's expressed wishes are not controlling in child custody order; however, they must be carefully considered in determining the best interest of the child. The court must consider and give due weight to the child's wishes. If it is determined the child is of sufficient age and has the capacity to form an intelligent preference as to custody, the court must consider and give due weight to the preference. There is no specific age at which a child's preference will be given complete deference by the courts. The maturity of the child is not measured by age; therefore, courts have the discretion to consider a child's preference as young as seven or eight years old. It is within the courts discretion to determine whether a child has requisite age and capacity to form an intelligent preference. The courts will determine this on a case-by-case basis.
Grandparent Rights in California
In custody proceedings, the court may grant reasonable visitation to a grandparent of a minor child if the court determines that visitation by the grandparent is in the best interest of the child. If a protective order has been issued against the grandparent, the court must determine whether the best interest of the child requires that visitation be denied. Visitation rights should not be ordered if it would conflict with a right of custody or visitation of a birth parent who is not a party to the child custody proceedings.
In a proceeding in which the grandparent has petitioned the court, the court may grant reasonable visitation rights to the grandparent if the court does both of the following: (1) finds that there is a preexisting relationship between the grandparent and the grandchild that has endangered a bond such that visitation is in the best interest of the child; and (2) balances the interest of the child with the grandparent against the right of the parents to exercise their parental authority.
In situations where the parents are married, the petition should not be filed unless the parents are currently living separately and apart on a permanent or indefinite basis; one of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse; one of the parents joins in the petition with the grandparent; the child is not residing with either parent; or the child has been adopted by a stepparent.
