Whether your Child Custody case requires vigorous negotiation, divorce mediation, or aggressive representation at trial, trust in Woodman Garcia-Sepulveda in Redwood City. Divorce family law attorneys with the legal knowledge and courtroom experience to protect you and your children.
Flora Garcia-Sepulveda, a founding partner of Woodman & Garcia-Sepulveda and a Certified Family Law Specialist, is an experienced trial lawyer who practices family law exclusively, focusing on diverse financial issues including business valuation, property division and child and spousal support. Ms. Garcia-Sepulveda is fluent in Spanish. Ms. Garcia-Sepulveda also represents clients in difficult custody disputes and move-away cases.
Fighting for child custody can be a traumatic experience. Understanding California child custody laws can help alleviate the stress (not to mention the expenses) associated with this all-important type of litigation.
There are two primary reasons to contest custody: to establish an initial agreement upon separation or divorce of parents, or if circumstances affecting the child/parents have or are going to change in any meaningful way.
It may seem obvious that the first situation — initial separation — would prompt a custody arrangement, but sometimes parents opt to make arrangements for their child on their own. It is wonderful if parents can be amicable enough to do so, but it is still in everyone’s best interest to have a written agreement.
There are also several reasons why an established child custody arrangement could be contested. Some are logistical, such as one parent moving for work or a military deployment. Perhaps a parent has achieved sobriety and is seeking a restoration of rights. Or financial situations may have changed, rendering one parent more capable of providing than the other.
In any of these situations, a reputable attorney will evaluate your particular situation and help you determine whether it is wise to contest a custody arrangement.
Many child custody cases do not have to be litigated by a judge. Parents often come to an agreement outside of the courtroom during mediation. Hiring an experienced attorney to negotiate for you will ensure that your rights are protected, and you and your child receive the best possible outcome.
There are protected classes in California child custody laws. Judges may not discriminate based on a parent’s gender, sexual orientation, race, handicap, or religion and the court will not approve an agreement if it violates either parent’s rights based on these statuses.
Under California child custody laws, there are two types of child custody: legal and physical.
Physical custody deals with where the child is actually located or residing. Joint physical custody does not mean that parents necessarily split time with the child evenly (50-50), though they may. It protects whatever visitation arrangement is in place and prevents either parent from relocating or otherwise taking the child without joint consent. Often, physical custody agreements also address where the children will spend holidays and school breaks.
Legal custody has to do with the kinds of decisions that the child is not legally able to make for themselves regarding their health, education, childcare, and safety. Under joint legal custody, both parents must be in agreement before a child receives non-emergent medical care or changes schools, which are just two examples of many.
Most child custody agreements will address both types of custody, and it is very common that joint custody be awarded in both the physical and legal realms in California. Judges do not like to award sole legal custody in most cases.
This is only the tip of the child custody iceberg, though. These decisions only establish that both parents are fit for that kind of care and do not dictate who spends which days with the children or who makes immediately pressing decisions. All of that is spelled out in more detail in individual agreements.
The best interest of the children is the most important guiding principle in deciding child custody cases in California. It is intentionally vague to give the courts a lot of leeway in considering all factors in a case involving the welfare of children.
Many factors are taken into consideration when determining what custody arrangement is in a child’s best interest. The point of the law is to consider the child as an individual separate from the parents. If a child has any educational, health-related, or other issues regarding well-being that render them safer with one parent over another, that is usually taken into consideration before all else. In addition, any evidence of abuse or neglect (whether or not the parent is themselves the offender) is also taken into consideration.
In addition, lawyers and judges will consider the parent-child relationship: is the child bonded more with one parent, and if so, why? Has one parent shown more willingness to become the primary caregiver?
Even if the parents are only initially separated, the courts will always consider the status quo, so consider that factor before entering into an informal agreement with the child’s other parent. Generally speaking, the less disruption to a child’s life, the better. If one parent is remaining in the home or the school district while the other is not, for example, that can be a factor in deciding physical custody especially.
One factor that can potentially change the outcome of a case is interference with a parent-child relationship. If one parent is actively working to worsen or otherwise make bonding and relationship-building more difficult for the other parent, the court may penalize them. Again, the language governing this statute is vague and broad, so it is important to have an attorney navigate this for you.
In addition, California has a mandate of “frequent and continuing contact” between parents and children. This means that parents cannot make it difficult for the other parent to have contact with the child while they have physical custody of the child. For example, if a child is with its father and its mother needs to speak to the child or needs to drop off an important item the child forgot, they should generally be allowed to do so.
The law is vague regarding what “frequent and continuing contact” actually means, giving the court a lot of leeway. Obviously, it will vary in every situation and will be different for a toddler than a teenager. Regardless, it is never in a parent’s best interest to withhold contact or information from the other parent (except in the case of abuse).
In a similar way, if one parent is making co-parenting particularly difficult and this can be proven, the court may be more favorable toward the other parent. For example, if one parent is using obscene language toward the other, or if they refuse to share their phone number or answer calls, this can be considered interference and the court may order a parallel parenting agreement.
Another common reason why parents seek changes in child custody arrangements is because of failure on the part of the other parent to pay child support. I am sure we all have an image of a “deadbeat dad” or “deadbeat mom” in our minds, but did you know that failure to pay child support can constitute abandonment and can cost a parent their custodial rights? Don’t let this happen to you; if you fall on hard times, even though adding attorney’s fees may seem to be the last thing that you should do, you need an attorney more than ever to protect what’s most important: your rights as a parent.
Although it is very difficult to think about, parental abduction happens more frequently than we like to imagine. What is more, abduction does not just apply in cases where one parent attempts to permanently move the child out of area and out of contact with the other parent. For example, taking a child on a vacation without permission of the other parent can constitute abduction (and can be a serious warning sign of future disobedience). In some situations, violating custody arrangements or withholding children from their other parent may also be considered abduction. In the very least, they are serious violations of the agreement in place and warrant legal recrimination.
A child’s preference is taken very seriously by California courts when they determine custody, and a child’s adamant insistence is often a reason why parents have difficulty settling out of court. The court will listen to the child and take other factors into account, such as their maturity level and age and any history of abuse. The child will most likely need to undergo some counseling with a social worker.
California law also considers bonding in making child custody arrangements. If children are more bonded with one parent over the other, they may have an advantage in a custody hearing. That said, the bonding must be a result of natural circumstances (such as willingly spending more or less quality time with the child) and not of one parent “poisoning” children against the other.
Criminal convictions are going to impact a parent’s ability to seek custody of their child, especially if they have been convicted of or plead guilty to any charges relating to child or spousal abuse. If the parent has abused the child in question, they may be ineligible for any kind of custody indefinitely.
Holding a criminal record does not necessarily mean that a parent will be denied custody, though criminal records will almost always be looked at by the courts in determining custody. Typically, judges are most concerned with a parent convicted of a crime against another child or any kind of sex crime.
Next, other violent crime convictions may impact a child custody ruling, as do drug convictions (especially when a parent may have an untreated substance abuse disorder). Finally, while non-violent crimes are less likely to impact custody decisions, a long criminal record — violent or not — will be a big obstacle for a parent seeking custody.
Even if there is no criminal record, if the court determines that a parent has committed acts of abuse or violence against the other parent or children in the home (and the judge has a lot of power in this), the abusive parent is assumed ineligible for joint or sole custody for five years.
In order to overcome this presumption of ineligibility, the same basic principles apply: the court must determine that it is in the best interest of the child to have custody awarded to the abusive parent. Alternatively, offenders can also seek court-approved counseling or take other steps in order to make necessary changes and become a more fit parent.
Accusing a spouse of abuse is not something to be undertaken lightly. Be careful about making these allegations. While it is absolutely your duty to report and pursue any suspected abuse against your child, making false allegations can be disastrous for everyone involved. No one loses more from a false allegation of abuse than the child themselves, and making a false allegation of sexual abuse can actually end up costing the accuser custody.
At the same time, if you have been a victim of domestic abuse of any kind (physical, emotional, and/or financial), you need to be completely honest about this with your attorney from the beginning. It is even more important to have competent legal representation in these situations, since your co-parent has shown themselves to be dangerous, manipulative, and dismissive of your needs. Our attorneys are trained to handle these kinds of sensitive issues, and their first priority will be protecting you and your children.
Just starting the process of opening a child custody case is complicated and stressful, which is another reason to hire a good attorney. They can help you determine if you qualify for an ex parte order (if your child is in imminent danger) and make sure that all of your other paperwork is in good order (called “request for order” paperwork). Taking good care of things in the beginning will help you avoid headaches and hiccups later.
Your lawyer will also help you prepare for mandatory mediation. Under California child custody laws, parents (and their representatives) must try to work out an agreement before appearing in court. What is more, both parents need to make an effort at making mediation work. This is a crucially important stage to have a reliable attorney for two reasons: first, they can keep emotions in check and do the talking for you in an environment that is often very charged. What a relief! Second, they will make sure that your rights are fully represented.
If mediation fails, that is where things can become very murky. In some cases, a child custody evaluator is hired to conduct an independent investigation on behalf of the court. In others, an attorney can actually be hired or appointed to represent the child.
The court can subpoena medical records (yours and your child’s), they can mandate psychological evaluations or counseling (for you or your child), and they can require drug and alcohol screenings, depending on the situation at hand. Too often, desperate parents come to us only when things have gotten very out of hand and they are in a dire situation. Don’t let that be you.
There are many reasons why you may have chosen to read this article today. Perhaps you are getting divorced or considering separation, or you may be unhappy with your current custody arrangement. Whatever the reason, you probably need some guidance and that’s where we come in.
Navigating the statutes surrounding California child custody laws is a full-time job, which is why so many lawyers in the state practice this type of law exclusively. They have knowledge not only of the laws themselves but what to expect in the courtroom, how to organize your evidence or defense, and what to expect if you have to go to trial.
In addition, since many child custody cases are settled out of court and are not litigated by a judge, having a good attorney is important so you can make sure that your rights are fully represented in any negotiations. It might be very difficult for you to communicate with your child’s other parent right now, and that’s okay. You need someone to fight for you in a civil manner during this difficult time so that both you and your co-parent can come to a legal, fair arrangement and get on with being the best parents you can be.
Remember that speaking to an attorney does not mean that you have to contest child custody, file for divorce, or anything else. But in order to protect your child, you must also protect yourself. Let one of our attorneys walk you through whatever path you choose so you can focus on what is most important: your children.
The experienced Family Law attorneys at Woodman Garcia-Sepulveda Law are ready to assist you in resolving your child custody case as quickly and effortlessly as possible. Call us today to get started.
If you need help and are looking for a highly competent and extremely caring family law attorney who has the skills and experience to really solve your problems, please contact Woodman Garcia-Sepulveda today!
