Custody issues have earned a bad name in California and elsewhere. Parents “fight” for custody. They have custody “battles.” But the reality is that courts actually prefer that parents reach their own agreements regarding their kids when they break up. Judges don’t want to see you in court any more than you want to be there. A judge will only get involved in deciding California custody matters when parents can’t or won’t come to their own terms. Judges will typically sign off on a mutual agreement, making it into a court order, unless it contains some provision that would clearly not be in the best interests of the children.
Joint and Sole Legal Custody in California
California laws recognize two types of child custody, just like most other states: physical and legal.
Legal custody refers to the parent who makes the important decisions regarding the children’s lives. “Important” is the key word here; it doesn’t mean the time of your teenager’s weekend curfew. It means things like medical care decisions, what school he’ll attend and whether he should be permitted to get that permanent tattoo that will still be there when he reaches retirement age.
Legal custody can be joint, or one parent might have sole legal custody. As the terms suggest, a parent with sole legal custody gets to make the important decisions all by himself, whereas both parents have a voice in joint legal custody. This isn’t to say that they must agree about that tattoo, but they each have a right to say yes or no. The other parent in a joint legal custody arrangement doesn’t have much in the way of recourse if she doesn’t agree with the decision, although parents have a right to file a petition and ask the court to decide an important issue if they can’t come to terms.
Joint vs. Sole Physical Custody in California
Physical custody refers to which parent a child lives with most often. Joint physical custody means the kids spend roughly the same amount of time in each parent’s home, although an exact 50/50 division of time is difficult, if not borderline impossible, to achieve. The children basically spend a significant amount of time with both parents and maintain homes at both residences.
Sole physical custody means the kids spend the majority of their time with one parent, and the other parent has visitation with them, which California custody law refers to as parenting time. The parent with whom the children spend the most time is referred to as the primary custodial parent.
California parents can have joint legal custody, while one of them also has sole physical custody – both types of custody don’t have to share the same terms.
How Do the Courts Decide Who Gets Custody?
Like all states, California has a fine-tuned code of family laws intended to guide its judges in making custody decisions. Issues of gender appear nowhere in that code. Courts won’t give preference to a father or a mother simply on the basis of gender alone.
Judges lean strongly toward preserving a child’s relationship with both parents. They might order an evaluation by a professional and a report of recommendation when substance abuse or domestic violence are involved.
Judges won’t separate siblings except under extreme circumstances, and they tend to lean toward joint custody arrangements when both parents agree. It’s rare for one parent to be granted both sole legal and sole physical custody.
Best Interests of the Child
California courts fall back on a doctrine referred to as “the best interests of the child” when parents can’t reach an agreement and a judge must decide custody terms for them. This is common among all states.
California’s best interests standard includes numerous issues the judge must weigh:
- Any special health needs a child might have that one parent is more suited to address than the other.
- Issues of domestic violence, drug or alcohol abuse.
- The conduct of both parents during the marriage, and how that conduct might have affected the children.
- The emotional bond between the child and each parent.
- The child’s wishes if she’s mature enough to understand the situation.
- Each parent’s caretaking abilities.
- Maintaining consistency for the child with regard to his school, his community and his friends.
- Which parent is most likely to promote ongoing contact between the children and the other parent. Specifically, which parent is least likely to take steps to interfere with that contact.
Custody decisions aren't limited to these issues and they're to be weighed collectively, presenting an overall picture of what’s best. No one issue should be controlling and be the sole basis for the court's decision.
Rules for Mediation and Evaluations
All married parents seeking a divorce in California must attend a mandatory parenting class at the beginning of the proceedings. The class is designed to help them help their kids – and themselves – through the trauma of the breakup. The class is available online or in person.
California custody law requires that parents attend mediation with Family Court Services or another court program before a judge will hear their case. This is intended to give them every opportunity to reach their own workable agreement before the court will intervene. They will have to meet with the judge in advance of trial if they fail to do so. The mediator will assist in committing their agreement to writing and submitting it to the judge if they can come to terms, and, in some counties, the mediator will make a recommendation to the court when parents can’t reach an agreement.
Custody evaluations are typically reserved for cases where some type of abuse is alleged or a special circumstance exists. The judge might order a custody evaluation to get a full, unbiased picture of the facts of the case, and either parent can request one as well, although there’s no guarantee that the judge will agree. The cost of the evaluation typically falls to the parents.
Common Visitation Terms
California law has another whole subset of rules and terms for sole physical custody situations where one parent has what’s historically been referred to as visitation. This, too, is based on the best interests of the child. It’s extremely rare that no visitation at all is ordered – this generally only happens when contact between the parent and child would place the child in physical or emotional danger.
A detailed visitation schedule is often memorialized in a court order, delineating exactly when the kids spend time with the noncustodial parent, often down to the precise hours of exchange. Provisions can be included for days of the week, birthdays, summer vacations and other extended breaks from school for holidays.
Some custody orders might simply give a nod to “reasonable” visitation in cases where parents get along extremely well and are able to work out terms on the fly to accommodate everyone’s schedules. No specific schedule is detailed.
Supervised Parenting Time
Supervised visitation might be ordered for any number of reasons: The parent and the child were estranged for a period of time, or maybe the parent is guilty of child or domestic abuse or has a substance abuse problem. There might be a risk of parental abduction. A third party is required to always be present in such cases when the parent and the child share time together. It might be the child’s other parent, another relative or even someone appointed from a professional agency.
California Custody Laws for Unmarried Parents
The same best-interests doctrine applies to all families, regardless of whether the parents ever tied the knot. The lack of a marriage can’t and won’t impact the court’s custody decisions, but unwed parents do face one additional hurdle: The court can’t make a decision on custody or even sign off on parents’ custody agreements, unless and until parentage is legally established.
Establishing Paternity in Custody Cases
Parentage is pretty black and white in the case of a biological mother, but an unmarried father must take steps to establish paternity. He’s legally presumed to be the child’s other parent when and if he was married to the mother, but otherwise, the parents must voluntarily sign a Declaration of Paternity and file it with the state. It’s sufficient that a father’s name appears on the child’s birth certificate in cases where parents married after the birth. He can ask the court to order genetic testing if there’s some dispute between the parents as to whether he’s the father.
Unfortunately, an unmarried father has no right to custody or visitation unless and until he’s legally recognized as the child’s other parent. The same rules apply to same-sex parents if they weren’t married when the child was conceived or born. Registered domestic partners are legally presumed to be the child’s parents in California as of January 1, 2005, just as though they had been married.
Other California Custody Laws for Fathers
California law recognizes a few other circumstances for claiming paternity, but you might need the help of an attorney to establish either of them; they’re admittedly somewhat rare and obscure.
A father is legally presumed to be a child’s parent if he tried to marry the mother and the child was born or conceived during the period of time when that “marriage” was in place. This might be the case if you thought you wed, only to find out later that something went procedurally wrong so the state doesn’t recognize your marriage.
Parentage by estoppel is another acceptable scenario. A father might be considered the child’s parent because he lived with and raised the child in his home for an extended period of time. He effectively held out to the world that he was indeed the child’s other parent. It doesn’t even matter in this case if he is, in fact, the biological parent.
Changing a Custody Order
Life isn’t stagnant, and sometimes circumstances change. A parent who never had a substance abuse problem might develop one, or maybe Dad was living out of state but now he’s bought a house closer to the children’s residence so he can see them more often.
Parents can easily reach a new custody agreement and submit it to the court for approval, or either parent can petition the court to change an existing agreement in light of new facts. A new round of mediation might be required.
It occasionally happens that neither parent is considered able to provide for the best interests of a child. A California court will award legal and physical custody to a third party in such cases, perhaps to a grandparent or other relative, in a situation referred to as guardianship. Both parents would have to be deemed unfit or unavailable, such as when one or both of them are in jail or hospitalized for an extended period of time. Otherwise, California courts strongly prefer parental custody.