Perhaps one of the most difficult aspects of divorce is having to go through child custody disputes. Navigating child custody determination in a divorce in a way that ends in the best way possible is difficult and requires a thorough understanding of the law and legal system. This article aims to empower you on this front, discussing:
- The differences between legal and physical custody.
- Factors that play into determinations pertaining to the child’s best interests.
- At what age a child can weigh into the outcome of their custody determination.
How Is Child Custody Determined Under California Family Law? Is There An Age Where The Child Can Have Input On Who They Want To Live With?
In California, there are two issues that comprise child custody determination in a divorce – legal custody and physical custody. Legal custody refers to the right to make decisions regarding the child’s medical care, education, religion, and sometimes extracurricular activities. Courts generally prefer both parents to have legal custody unless there are compelling reasons to grant sole legal custody to one parent. It’s rare for people to request sole legal custody unless a parent has been absent, harmed the child, or is unable to make sound judgments. It’s even more rare for these requests to be granted.
Physical custody refers to where the child resides day-to-day. There are two types: joint physical custody and sole physical custody. Joint physical custody does not always mean equal parenting time, while sole physical custody means one parent has primary physical custody. The court typically defaults to a 50-50 custody arrangement unless circumstances dictate otherwise.
California is a reactive, not a preventative, state. That to say, it will not limit custody or legal rights as a measure of ensuring nothing happens to the children caught in the child support case. It will only prevent custody and limit legal rights when something has happened to the kids. Although it’s unfortunately a horrible system, it is the system in place.
One common scenario I’ve come across several times throughout my career involves misunderstandings regarding custody arrangements. For example, a parent may seek sole physical custody while maintaining a 50-50 custody time arrangement. The other parent, believing they have joint custody, may later face challenges when the custodial parent begins the process of moving. In these cases, the burden falls on the non-custodial parent to demonstrate the inappropriateness of the proposed relocation.
Ideally, custody arrangements are best settled through mutual agreement between the parties involved. This ensures that the arrangement is tailored to the family’s unique circumstances and schedules. In California, custody disputes typically undergo Family Court Services (FCS) mediation, where a mediator helps parents negotiate and reach a resolution. It’s a mandatory step for all custody issues brought before the court.
- Recommending And Non-Recommending Counties
There are two types of counties when it comes to custody mediation: recommending counties and non-recommending counties. In recommending counties, the mediator prepares a report containing their recommendations and submits it to the judge. The report outlines the mediator’s opinion on what they believe should happen regarding custody arrangements. In these cases, the judge often heavily considers the mediator’s recommendations when making a final decision. Therefore, the mediator’s input holds significant weight, making the mediation process crucial in recommending counties.
Conversely, in non-recommending counties, the mediation process focuses on facilitating discussions between the parties to reach an agreement. If the parties are able to reach an agreement during mediation, it is presented to the court for approval. However, if no agreement is reached, the case proceeds to litigation as originally planned, with no adverse consequences resulting from the failed mediation attempt.
Again, the best option is for the parties to come to an agreement. This ensures you can maintain some level of control over what your life is going to look like beyond your case. If you don’t, the court is going to make a decision on how you need to proceed with your life.
- Age Of The Child
The age of the child is a significant factor in determining custody in California. School attendance, proximity to the school, consistency in caregiving, primary parental responsibilities, involvement in extracurricular activities, and healthcare concerns all come into play when finding the ideal situation for upholding the child’s best interests.
In California, the opinion of the child must be taken into consideration at 14 years old. However, this does not mean the child’s preference dictates the outcome of their custody case. Instead, the court weighs their input along with other relevant factors in determining the best interests of the child.
In some instances, younger children may also provide their perspectives, but this depends on the judge’s discretion and the circumstances of the case. If there are concerns about aligning the child’s interests with the parents’ interests, the court may appoint a minor’s counsel. This attorney represents the child’s best interests and provides recommendations to the court.
With custody in California, the court maintains jurisdiction over the children until they are 18 or until they graduate from high school at the age of 19. It will maintain this jurisdiction until reaching this age, controlling what happens with that child until that point in time.
For more information on Child Custody Determination In A Divorce, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (888) 301-6777 today.
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