Child Custody FAQ


Can Someone Other Than Parents Get Custody Or Visiting Rights?

Yes. California law says that judges first must consider giving custody to one parent or both. But a judge may give custody to another person such as a grandmother, stepfather or friend- without the parent’s consent. In such a case, the judge would have to believe that giving custody to either parent would be “detrimental” or harmful to the children and that the children would be better off with someone else. I custody is given to a person other than a parent, the first choice usually is someone who already has made a good home for the child. A judge may give visiting rights to anyone interested in the child’s welfare. The law specifically says that stepparents and grandparents who ask for visiting rights may attend mediation sessions along with parents. If no agreement is reached through mediation, the judge will decide whether stepparents and grandparents may visit the children.

 


Does The Judge Consider What Our Children Want?

Children’s wishes may count in a court’s decision. The law says that when a child is “of sufficient age and capacity to reason,” a judge must consider what the child wants. The judge decides when a child has reached this stage. And, the judge is required only to consider, although not necessarily to follow, what the child says. Once in a while, a court may decide to appoint a lawyer to represent the child. In such a case, both parents are charged for lawyer’s fees according to their abilities to pay.

 


How Can A Parent Get Primary Custody?

If you and your spouse cannot agree on joint custody or if a judge finds that it will not work, the judge might give primary custody to one parent. The other parent usually has the right to visit the children regularly and often. If, after talking with a mediator, you and your spouse cannot decide which one of you should have custody, the judge will decide after hearing both sides. A lawyer can help you present your case. Parents may want o use experts as witnesses to help them get custody. For example, a parent may believe that a child living with the other parent would be emotionally neglected. If so, that parent may want to hire a psychologist to look into the matter and possibly testify in court. A parent also may ask the court to order a psychiatric examination of the other parent if his or her emotional state is questionable. Under special circumstances, one parent may ask the court to stop the other parent from seeing the children. This is granted only when the other parent is seriously unable, physically or emotionally, to care for the children and when with him or her would be sure to harm the children.

 


How Can I Find A Lawyer To Represent Me?

If you do not know a lawyer, ask a friend, co-worker, employer, or business associate to recommend one. Or call a lawyer referral service run by a bar association in your area. Look in the Yellow Pages of your telephone directory under “Attorney Referral Service,” “Attorneys” or “Lawyers.” The person who answers your call can make an appointment for you to see a lawyer for about half an hour. If you decide to hire the lawyer, make sure you understand what you will be paying for, how much it will cost, and when you will be expected to pay your bill. Lawyers who handle custody and divorce cases are called family law attorneys. Some are certified specialists in family law. This means that they have met the standards for certification set up by The State Bar of California. However, not all lawyers who have experience and expertise in family law have sought certification. What if you do not have enough money to pay for legal advice? You may belong to a “legal insurance” plan that covers the kind of services you need. Or, if your income is very low, you may qualify for free or low-cost legal help. Check the white pages of your telephone directory for a Legal Aid Society or Legal Services Foundation in your county. You also can ask your county bar association if its Lawyer Referral Service offers free legal advice for low income people or if it can direct you to a no-cost legal services organization. For more information, see How Can I Find & Hire the Right Lawyer?published by The State Bar of California.

 


How Does Joint Custody Work?

You and your spouse can either have “joint legal custody” or “joint physical custody” – or both. With joint legal custody, parents share the right and responsibility to make important decisions about their children’s health, education and welfare. These might include such things as where the children will go to school or whether they should have braces on their teeth. It also means that parents share information about the children with each other. (No matter who has custody, both parents have equal rights to information about their children from schools, doctors and others.) Joint physical custody means that the children spend living time with each parent on a regular basis. It does not mean that the children must spend equal amounts of time with each parent, although they may do so. The children might spend school days with one parent and weekends and some vacations with the other. Or, the children might stay with their mother for a week, month or longer, then move in with their father for a time. If the parents live near each other, the children may go back and forth between them without an exact schedule. Usually, parents who want joint physical custody work out a routine on their own without a mediators help. However, a judge could give both parents joint legal custody but not joint physical custody. In this case, both parents would have equal responsibility for important decisions affecting the children’s lives but the children would live mostly with one parent. The parent who did not get physical custody usually would have regular contact with the children. The idea is to make a plan that is best for your children. Remember, children can have a hard time adjusting to changes in their lives. Studies of parents and children after divorce show that children cope better with the break-up if both parents play active roles in the children’s lives. Because you probably will be under a great deal of stress, figuring out the best arrangement and making it work will take a lot of patience. One family counseling service suggests that parents treat custody like a business arrangement; they should talk to each other during certain hours only and stick to the subject of the children. Note: Custody arrangements can have important effects on your right to stay in the family home and on whether you receive or make child support payments. Custody decisions also can affect your right to claim certain tax benefits, such as head-of-household status, dependency exemptions of the child care credit, as well as public-assistance benefits. It is a good idea to check these with your lawyer before reaching a final agreement.

 


How Does The Judge Decide Who Will Have Custody?

California law says that judges must award custody according to the “best interests” of your children. Judges decide what the best interests are, but they must consider the children’s health, safety and welfare. Here are some general guidelines that judges follow: In most cases, judges give custody to either one parent or both parents. Occasionally, however, custody could be given to someone else such as a friend or relative. If both parents ask for “joint custody”, which means that they share custody, the judge usually will grant it. Suppose a judge decides on “sole” or “primary” custody, which means that one parent has primary responsibility for bringing up the children. The judge will consider which parent can do the better job in caring for the children’s needs and is more likely to allow the other parent to see the children often. A judge also may consider where a child will find the most wholesome and stable home. To decide this, the judge could rely on the evaluation. The evaluation might tell how close the home is to schools and relatives and how much supervision a parent can give the children. However, the judges decision is not based on how much money each parent has or earns. California custody laws have changed a good deal in the past few years. Courts no longer automatically give custody to mothers instead of fathers, even for small children. And generally, a court cannot deny custody or visiting rights simply because the parents were never married to each other or because on of them has a physical disability or unconventional lifestyle, religious belief or sexual preference.

 


If A Custody Plan Doesn’t Work, Can It Be Changed ?

Yes. The easiest way to change a custody arrangement is for you and your spouse to come up with a new plan and ask a judge to make it official. Judges often approve changes without a hearing if both request them. If you cannot agree on changes, either of you may ask a judge to make the change. The judge’s decision will be based on your children’s best interests. Suppose you want to take custody away from your spouse who does not want to give it up. Then you must convince the judge that you r children now would be better off with you. You may try to show, for example, that your spouse won’t let you visit the children or is hiding them from you. Or you may present evidence that your spouse neglects your children. However, you should know that getting the arrangement changed may be a difficult if the children are reasonably cared for and the custody plan has been in effect for some time.

 


What Can I Do If My Spouse Won’t Let Me Visit The Children?

If your spouse refuses to let you visit the children when the judge said you could, you or your lawyer may ask a judge for a “contempt” order. This means that your spouse could go to jail for continuing to refuse.

 


When My Spouse And I Separate, What Happens To Our Children?

The best solution is for you and your spouse to agree on who will take care of the children. It could be either of you or the two of you may want to share the responsibility. In California, county superior court judges make the final decision. But, in most cases, a judge will approve a custody plan that both parents want. (Juries are never used in child custody cases.) If you agree on a custody arrangement, you or your lawyer should attach a written copy of your plan to the divorce or separation papers you eventually file with the court. The agreement doesn’t have to be in fancy language. However, if you and your spouse cannot agree, then the first question is who gets “temporary custody” of the children. The parent who has temporary custody takes care of the children until a long-term decision is made. Either you or your spouse may ask a judge for temporary custody. Suppose you and your spouse do not agree. Then, in most cases, a judge does not make a decision until you and your spouse have talked with a mediator or counselor who will try to help you reach an agreement. Some lawyers advise clients who want long-term custody to start by asking for temporary custody. They believe judges tend to grant long-term custody to the parent who already is caring for the children. But, even if you do not ask for temporary custody, you still may be able to get long-term custody later on. Suppose you are afraid that your spouse might move to another state with your children. You stand a much better chance of preventing this and keeping the custody proceedings in the California court system if you have temporary custody. Even if you do not receive temporary custody, you may need to ask a judge to issue a “temporary restraining order.” This says that neither of you can take the children out of the state without the other’s written consent or a court order. What if your spouse has been violent or threatened to hurt you or your children? You or your lawyer may ask the judge for an order that says your spouse cannot enter your home. Usually, a judge will give your spouse a chance to explain his or her side before issuing this order. It is a good idea to talk with a lawyer early on even if you and your spouse agree about custody arrangements. A lawyer can tell you about your rights and duties concerning your children as well as about property and support matters. A lawyer will also know whether you should file for custody in California or in another state.

 


Who Will Get Long-Term Custody If My Spouse And I Cannot Agree?

If you and your spouse disagree about custody, a superior court judge will decide who take care of the children. But, the law says you first must talk with a mediator or counselor who will try to help you work out a plan. The judge will appoint a court mediator to talk with you. In some counties, you may be charged for part of the mediation if you need a number of sessions. You and your spouse may also try to work out a plan with a private mediator before going to court. Your lawyer may be able to help you find one. It is a good idea to ask about the mediators experience and training in addition to the costs. Conversations with private mediators are confidential. And, in many California counties the talks that you and your spouse have with a court mediator also are confidential. However, in some counties, the court appointed mediator may make a recommendation to the judge. Then, this mediator may be called to testify as a witness if your custody dispute goes to court. You should discuss this possibility with your lawyer or the mediator before mediation begins. The best custody arrangements are the ones that both parents agree on. Parents are often able to work out their custody disagreements through mediation. However, if mediation doesn’t work, a judge will listen to both sides and rule on your dispute in a court hearing. And, the judge may appoint an evaluator to prepare a written report in order to learn more about the issue. For example, an evaluator would be appointed if one parent claims the other is unfit to care for the children. A parent also may request an evaluation. You should know that parents may be charged for all or part of the evaluation costs if they can afford to pay. Custody disputes usually will be decided before other contested issues in your divorce, such as which parent gets the house, car or other possessions. A custody case may be put ahead of many other cases on a court’s calendar, too.

 


Who Will Pay To Support The Children?

You and your spouse both are responsible for supporting your children. A judge usually will say how much each of you should pay in child support. The decision will be based, among other things, on how much time you spend taking care of the children, how much money each of you makes, any financial obligations each of you has and the expense of raising your children.

 


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