A Primer on California Child Custody Law

November 05, 2010

When a husband and wife divorce or an unmarried couple chooses to go their separate ways, there are countless decisions to be made. Will one party stay in the home or should it be sold? Where will the pets live? Who gets the furniture? How will investment account monies be divided? Are there business interests that need to be addressed? Which vehicle goes to which party? Decisions about property the couple acquired during their time together may be difficult, but they pale in comparison to those involving the couple's children.

If a split is amicable, the couple may be able to decide for themselves with whom the children should live, what (if any) child support should be paid, how much parenting time the non-custodial parent will have and other issues that will affect the child and his/her relationship with each parent. In some cases, they may need the assistance of an attorney, mediator or other third party, but are still able to reach a workable resolution for major issues. If, in spite of their best efforts, such decisions cannot be made by the parents themselves, then the court can intervene to make a determination.

Types of Custody

When a judge is tasked with making a custody determination, there are a number of different factors to consider, and a number of different types of custody that must be addressed. There are two basic categories of custody:
- Physical -- the residence of the child
- Legal -- making important life decisions on behalf of the child

Those two categories can exist in nearly any incarnation for a particular family, however, with a combination of custodial responsibilities going to either parent.

One parent may be given sole physical custody of the child with the other party having visitation rights -- this is probably the most common physical custody arrangement, granting each parent the ability to maintain a quality relationship with the child. Oftentimes even if one parent -- traditionally the mother, though more and more fathers are stepping into this role -- has been granted sole physical custody, the parents share legal custody. This means that they will both have input into the decisions involved in raising the child. The broad term "legal custody" covers many different aspects of the child's life, including:
- Religious observance
- Health care -- including selecting a physician, receiving vaccinations, managing chronic health conditions
- Other matters affecting the child's welfare and well-being
- Participation in extracurricular activities
- School selection and other education-related matters

The "Best Interests of the Child"

When the courts are making any type of custody or parenting time decision, California law declares that any actions or determinations that are ordered must be for the child's benefit. In legal terms, this is known as the "best interests of the child" standard. Each state defines this seemingly vague term in its own way, but there are a number of factors that influence the court's decision-making process. These include:
- Age and gender of child
- Mental and physical condition of both parents
- Religious/ethnic/cultural preferences
- Stability of current home environment
- Each parent's level of engagement in the child's life (i.e., figuring out who cooked the child's meals, gave the child a bath each day, dressed the child, took the child to medical appointments, fostered educational enrichment and bought necessities like food and clothes)
- Input of the child (of a sufficient age and mental capacity to express a preference for one parent over the other)
- Social support system of both parents (friends, family members, etc.)
- Parental history of criminal activity, drug/alcohol addiction or physical/mental/sexual abuse
- Educational opportunities for the child

Need Help?

Custody determinations cannot be taken lightly. They need to involve careful consideration of the child's needs, each parent's ability to meet those needs and a number of other factors. If you are in the midst of a divorce or separating from your partner -- or you expect that such a separation is impending -- speak with an experienced family law attorney in your area for more information about California child custody determinations.

Article provided by Dominion Law Group LLP
Visit us at www.dominionlaw.com