Divorce is an arduous process to go through. When a marital relationship ends, there are many things that need to be sorted out. Property and assets have to be split, and moving is difficult. More importantly, if you have children, they need to live with one or both parents.
Over 23 million children in the US live in a single-parent home, and the legal process for guardianship is challenging. Child custody is complex and you need the guidance of a qualified child custody lawyer to help you through the process. This can be done either in court or by a legal agreement. You need to understand the types of custody in order to provide the best arrangement for your children.
Types of Child Custody
Where your child lives and who gets legal custody is important for the stability of your child’s life. You want to provide a stable environment for them to grow up in, free of conflict. There are two types of child custody that the courts will determine.
This gives a parent the legal right to make decisions for their minor child. They are responsible for their well being including education and health. Both parents usually get legal custody regardless of where the child lives.
Physical custody is where your child will live. California is a 50/50 custody state, so joint custody is typical in most divorces. In some cases visitation with the other parent can be limited, and this is usually the most contested part of a divorce. Child support is normally given to the spouse that has physical custody or has a lower income than the other parent.
Factors Determining the Outcome of Custody
There are several things to consider when custody is being contested in a divorce. The “best interest of the child” is how courts determine custody and visitation, and they use four factors:
- Historical parental role since the child’s birth
- The parent’s situation going forward
- Behavioral and personality traits of each parent
- Where the child prefers to live
A final child custody decision will be made by the court and both parents are obligated to follow it.
In preparing for a custody battle, you need to remain active in your children’s lives. The court will evaluate your conduct and actions as well as any aggressive behavior during the proceedings. It’s important to document as much as you can as you go through the process.
Joint Physical Custody
Joint custody is most often preferred as it is best for children to have both parents in their lives. Unless there is a danger to the child, the court will award custody as fairly as possible. While 50-50 would be optimal with an alternating schedule, the goal is to have both parents regularly involved in the children’s lives.
Children usually do better with this arrangement rather than sole custody, and it obligates parents to be there. Make sure to consider how time is best split between both spouses and how far you will live apart. If possible, be cordial with each other during drop-offs and pick-ups and communicate frequently regarding your child’s well being.
Sole Physical Custody
With sole custody, your child lives permanently with one spouse, and the other
has regular visits, usually determined by the court. This situation generally only occurs when one parent is found to be severely lacking in parenting skills or stability.
Visitation Rights of the Non-Custodial Parent
There are visitation schedules determined by the courts for non-custodial parents that have to be followed. Violating these visitation rights can send you back in front of a judge for a contempt of court hearing. As this could be considered a criminal offense, it’s important to follow the arrangements as set out.
Visitation Rights of Grandparents, Step-Parents, and Caretakers
Your children have many people in their lives, and your divorce should not cause them to lose those relationships. The court can grant reasonable visitation rights to any person who has a vested interest in your child’s life. Hopefully, you can have visits without conflict, but the courts are there to protect your rights and the rights of your children.
Where to Start with Child Custody Negotiations
When it’s time to decide what will happen with your children in a divorce, there have to be negotiations. You can come up with an arrangement yourself, they can be with a mediator, or in front of a judge but either way, you should get legal advice. In the end, you will have a legal agreement ready for court approval that will become a binding contract.
Parents can privately negotiate to reach a custody arrangement. If both parties can come to an agreement, you only need to finalize it with the court.
If you need a neutral third party but want to avoid court, you can use a mediator. They will explain the process and guide you through all custody issues, working towards a fair resolution. Mediators will work through each issue with a goal of collaboration and when everything is resolved, they will write up the agreement for the court to finalize.
If both parties are unable to settle everything outside of court you may need a judge to handle the child custody arrangement. The judge will determine the best scenario for custody and visitation rights based on several factors including the parents living situation, child-rearing responsibilities, their relationship with the child, the child’s parental preference, and the child’s age.
When to Hire a Child Custody Lawyer
If you are able to peacefully negotiate fair terms for child custody without professional help, you may not need legal representation. However, some situations can’t be worked out, and you must act in the best interest of your children. Hiring a child custody lawyer to be in court with you may be necessary for the following situations:
Your Ex is Preventing Access to Seeing the Children
If your ex is denying your visitation or canceling scheduled contact with your children, it’s time to hire a lawyer. He or she cannot legally deny you visiting your children without a court order. You will need professional representation to address this in front of a judge.
Your Children May Be in Danger
If you believe your child’s safety is being threatened, you can’t take any chances in court. Call 911 first and then contact a lawyer. An attorney can assist you in getting a restraining order in place to protect your child as well as provide you with legal advice on all your options.
Cross Jurisdiction Cases
There are situations where your ex lives in another state or country. Having an attorney that understands interstate and international custody law is imperative to gaining access to your children when there is distance.
Your Case Becomes More Complicated
At the beginning of your child custody case, it may be pretty straight forward. A spouse can change their mind about agreed-upon arrangements or claim that you are unfit to care for your children. Things can go south pretty quickly so it becomes necessary to seek the advice of a lawyer.
What do Child Custody Lawyers Do?
Parenting should be a team effort. When there is a divorce your children can become a bargaining chip in your interactions with your ex, and it’s bad for everyone. If you don’t know what the laws are and what you can do then you should seek professional representation.
Child custody cases are complex and many factors need to be taken into account. Lawyers can look at the situation objectively and negotiate with your ex to bring about an equitable outcome. An attorney will manage deadlines and know how to properly file paperwork for your case as well as advocate for you and your children. Most importantly, they represent you in court. They have experience in the process and can negotiate visitation rights and child support payments on your behalf.
Benefits of Hiring a Child Custody Lawyer
A child custody lawyer will:
- Help negotiate custody with an agreement or in the courts
- Represent you in mediations
- Help determine where your children will live
- Prepare all paperwork for the courts
- Represent you in court
This is a stressful process and having a lawyer with experience in child custody cases will take the burden off you while fighting to get your desired outcome.
Practice Areas Relating to Child Custody
There are a wide variety of practice areas related to child custody. Your attorney can represent you in issues including:
- Child custody
- Child visitation
- Restraining orders
- Child support
- Spousal support
When you are seeking a divorce, several of these other issues come into play, and you will need an experienced lawyer that can handle multiple legal problems for you.
Child Custody FAQs
What Rights will a Possessory Conservator Have?
A possessory conservator has the right to access a child through visitation.
What Rights Will a Managing Conservator Have?
A managing conservator has the rights and responsibilities to make decisions about a child.
What is in a Courts Final Child Custody Decision?
This will include which guardian has parental responsibilities with your child with either sole or shared responsibility. Spousal and child support can also be outlined in the decision. Everything is based on the best interest of the child.
Who Determines How Much Visitation is Fair and Reasonable?
Ultimately the court decides visitation but takes into consideration the custodial parent and the parent seeking visitation.
Can Only One Parent Receive Custody?
Yes. One parent can have sole custody if it is determined that the other parent is unfit to parent due to financial or mental instability as well as other factors such as alcohol or drug abuse and domestic abuse.
What if One Parent Makes Unilateral Decisions for a Child Without Consulting the Other Parent?
Only a parent that has sole legal custody of a child can make such decisions. If you have shared custody it is best to communicate and make decisions together that are in the best interest of the child.
What is Parental Alienation?
This is when one parent uses manipulation to cause your child to reject you because of fear, hatred, or disrespect.
Divorce and child custody issues can cause stress and frustration for all parties involved. It’s in your best interest to get professional advice and help from a qualified child custody attorney. They can take control of the situation and represent your interests in court, helping you start a new life with your children. At Westover Law, we have experienced family law attorneys in California, serving families with honesty, integrity, and loyalty. Contact us today for all your divorce and child custody issues.