California divorce: the question of child custody

In child custody matters, California law focuses on the best interests of the children.

Nationwide, state laws require that decisions about child custody at the end of marriage are to be based on what is in the best interests of the children at issue, and California is no exception.

Physical And Legal Custody

Child custody has two parts: physical and legal. Both types of custody can be either jointly or singly held. Legal custody asks which parent has the power to make major life decisions on behalf of the child, those impacting his or her "health, education, and welfare."

Physical custody asks which parent will control and supervise the child. If the parents have joint physical custody, California law says that each will get "significant periods of physical custody." This does not mean that joint custody has to be split 50-50, but that the child will have "frequent and continuing contact" with each parent. In a sole physical custody arrangement, the child lives with one parent and sees the other under a visitation arrangement, if approved by the court.

Who Will Decide?

Often a divorcing couple can negotiate a marital settlement agreement in which they agree on how to settle their legal issues, including custody and visitation. While this process involves compromise, it is probably better than leaving it up to a state court judge who does not know the family.

Normally the parties will negotiate through their divorce lawyers, but sometimes alternative methods of negotiation can be helpful such as mediation, in which a trained neutral third party helps them to work through their issues and resolve disputes. This may happen privately by arrangement of the parties or sometimes by court order using a court-appointed mediator. Either way, if negotiation fails, custody and visitation issues will be decided in court.

The Best-Interest Standard

California statute says that when a judge looks at a custody question, he or she must consider any factor relevant to the particular child, but that the court must weigh all of the following factors in deciding what is in the child's best interest:

  • Child's "health, safety, and welfare"
  • Parental history of domestic abuse
  • Amount and type of parental contact with the child, unless absence is short, and the parent tries to regularly contact the child and shows no intention to abandon him or her; or the absence is to escape domestic violence (unless the absence is because of a protective order against the parent or the parent has abandoned the child)
  • Parental abuse of alcohol, illegal drugs or prescription drugs, for which the court may order physical testing

If the child is old enough and mature enough to intelligently prefer a particular custody arrangement, the court must consider those wishes, although the manner of child testimony or communication of preferences to the judge is tightly controlled by law.

A parent's immigration status does not prevent him or her from being granted custody of his or her child in California. In another unique provision, California custody law gives the court power to allocate custody and visitation rights among more than two parents if it is in the child's best interest.

Special provisions in the law control custody issues for military parents or in matters of domestic violence. California law severely restricts custody and visitation rights of parents with serious criminal histories, especially for sex crimes involving children.

Legal Counsel Is Important

California custody law is complicated and nuanced; it is wise to engage an experienced divorce lawyer as early as possible. In Vista, the attorneys at Gavin & Dersch Law and Mediation represent family law clients throughout Southern California.

Keywords: best interests, Legal custody, Physical custody, marital settlement agreement, mediation, immigration status