In consideration of child custody, two types of custody will be addressed in a divorce.
Legal custody, the ability to make decisions concerning the health, education, and welfare of a child is most often shared by both parties. (California Family Code § 3003) Physical custody, the living arrangements of a child, can vary. (California Family Code § 3004)
Joint physical custody occurs when a child spends a substantial amount of time at the home of each parent. In contrast, when one parent has primary physical custody, the child resides with the primary custodial parent and the other parent has visitation rights.
Parents may come to an agreement regarding custody and visitation, or the court will make the decision based on the best interest of the child as provided in California Family Code § 3011.
Our specialized team of family law attorneys have the experience and understanding of the factors the courts must consider for the best arrangement for child custody including cases involving a relocation and grandparent visitation and important custody issues.
Frequently Asked Questions
These questions and answers are not intended to be legal advice to any person. This information is general in nature and an answer given may or may not be applicable to a particular situation. Family law issues are extremely complex and competent legal advice should be sought from a licensed attorney.
1. Who gets to decide where the kids go to school?
The answer depends upon who has legal custody of the kids. The parent with legal custody has the power to make that decision. If both parents have legal custody, both make the decision. If you cannot agree, a motion may be required and an expert hired to evaluate which of the options is in the “best interest of the child.”
2. Can I take the kids out of the country?
You can take the kids out of the country for a vacation if there is an agreement to do so in your child custody and visitation agreement or the other parent consents.
3. Should my spouse have the kids most of the time because he/she doesn’t work?
Assuming this is in contemplation of a divorce, your spouse will be required to become self-supporting, in other words, go to work. If you are the supporting spouse and you want to pay a larger amount of child and spousal support so that your spouse can stay home and watch the kids, you may make that decision.
4. Can I move the children out of state?
If you have sole physical custody of the children, the answer is probably yes. If your spouse agrees that you can move out of state with the children the answer is yes. If your spouse does not agree and shares physical custody of the kids, the answer is maybe. You would need to obtain a move away order from the court before relocating.
5. Who pays for extra-curricular activities?
Assuming this means activities other than those associated with school, either parent can pay for them. Usually the parent who wants the child involved in extra-curricular activities pays for them. You cannot force the other spouse to pay for extra-curricular activities without agreeing in an order to do so. If both parents want the child to participate in extra-curricular activities, they can agree to share the costs equally.
6. Can I take the kids out of the country?
See the answer related to moving out of state. You can take the kids out of the country for a vacation if there is an agreement to do so in your child custody and visitation agreement or the other parent consents.
7. How does the judge decide custody issues?
Assuming the parties can agree to share custody, the judge will follow the agreement of the parties. If custody is disputed, the judge will listen to the recommendations of a child custody evaluator who will opine as to what is in the “best interests of the child.” The court will also consider all evidence relevant to the best interest of the children.
8. What is physical custody?
Physical custody is the parent who has possession of the child physically.
9. What is legal custody?
The parent or parents who have legal custody make all the legal decisions concerning the child such as where the child will go to school, what doctor the child will see, what medicines the child will take and so forth.
10. How does a judge make custody decisions based on a child’s age?
The court must ‘consider’ and give ‘due weight’ to the wishes of children who are of ‘sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation.’ This is done on a case-by-case basis. The older the child the more weight is usually given to the child’s preferences regarding with whom they wish to live with. Often these preferences will be conveyed through a child custody evaluator. A child over the age of 14 has the right to directly address the court. Our website contains good materials on standard age-related timeshare agreements.
11. How does a judge generally decide division of holidays?
The parents can agree on a holiday schedule whereby they are divided equally or alternate on a yearly basis or some combination of the two. If the parents cannot reach an agreement on holidays, a mediator or other professional will make a recommendation that will likely be adopted by the judge.
12. What if my spouse intends to take the children out of state?
It depends upon what the parties have consented to do and what orders are in place. For instance, this would be acceptable if your custody and visitation agreement allows for vacations out of state.
13. What can I do about my spouse not letting me see the children?
Assuming there are no issues of domestic violence, drug or alcohol abuse, mental instability and so forth and there are no child custody and visitation orders or other orders preventing you from seeing the children, you should be able to obtain visitation with your children. If your spouse refuses to allow you to have visitation with your children, a motion for child custody and visitation can be made so that you can obtain an order allowing you to have custody and visitation with your children.
14. How do I change my custody/visitation and support orders?
Absent an agreement between the parties followed by a stipulation and order, a motion to the court will be required to obtain a change in your custody/visitation orders. In order to change the amount of support, “changed circumstances” will need to be shown such as a loss of a job, change in income, etc. With regard to a change of custody or visitation, the burden of proving a prima facie case for modification generally requires changed circumstances (unless the existing order was by agreement rather than trial) and, in custody cases, that custody change is in child’s best interests.
15. As a grandparent, I am not being allowed to see my grand children by my son-in-law. What can I do?
Ask your daughter to allow you visitation. OR If a divorce is pending, the court has jurisdiction to adjudicate visitation in your favor. The court ‘may’ grant reasonable visitation to a grandparent of a minor child of a party to the action … provided the court determines grandparent visitation is in the child’s best interest. Generally, grandparents may also seek visitation rights in an independent action brought at the grandparent’s behest pursuant to Family Code Section 3104. Grandparents may seek visitation after entry of a divorce and custody award. Threshold requirements: The exercise of discretion to act on a grandparent’s 3104 visitation petition is limited by two requirements:
1) There must be a preexisting relationship necessitating visitation in child’s best interest.
2) Consistent with exercise of parental authority: the court must balance the child’s interest in grandparent visitation against the parents’ right to exercise parental authority.
The petition cannot be filed when the parents are married unless they are living separate on a permanent or indefinite time period. OR One of the parents has been absent for more than one month without the ‘other spouse’ knowing the absent parent’s whereabouts.
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