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California Child Custody Guide

Overview

Child custody arrangements can be complex and difficult – but they don’t need to be abominable. Generally speaking, the health and welfare of the child is a shared concern among both parties in a divorce, and determining what is in the child’s best interest is paramount. Most of the time, the courts will order shared legal custody for both parents, as long as they are able to work together to make decisions for the child and both parents are capable of making such decisions, and it is not in the child’s best interest for only one parent to have custody.

However, there are many other factors considered in child custody situations in California. Every situation is different, but typically the court will look at the age of the child, the health of the child, the ability of each parent to care for the child, the child’s ties to their home, school, and community, and the emotional ties between the child and both parents. The court then works to determine what kind of custody arrangement will best serve the child.

In this guide, we will define some of the key terms that are often involved in child custody matters, and answer questions about paternity (determining who is a child’s father), custody, and termination of parental rights.

If you are involved in a custody dispute or are thinking about getting a divorce and need to know your rights and obligations with regards to child custody and visitation, you will want to have an experienced attorney by your side. At Moshtael Family Law, our team has handled myriad child custody cases with ease, and we have more than likely worked with someone in your exact same situation. Please contact us if you need help navigating the legal process or working through your custody matter – we aim to help Southern California parents resolve their custody issues thoroughly, efficiently, and affordably.

Common Legal Terms

Child Custody: The responsibility for the care of a child awarded by the court during divorce or separation proceedings.

Child Support: A financial arrangement following a divorce that ensures children in a divorce are properly provided for by a spouse, regardless of custody.

Joint Custody: Custody of a child that is shared by both parents.

  • Joint legal custody means that both parents have the legal authority to make decisions for the child on important things like education and healthcare.

Joint physical custody means that both parents are responsible for the physical care and supervision of the child, and taking care of physical needs like shelter, clothing, food, and transportation.

Sole Custody: Sole legal custody is when one parent only has the legal authority to make decisions for the child on important things like education and healthcare.

  • Sole physical custody means that only one parent is responsible for the physical care and supervision of the child, and taking care of physical needs like shelter, clothing, food, and transportation

It is important to note that a court may order sole physical custody to one parent, and joint legal custody to both parents.

Paternity: Refers to determining who is a person’s father.

Spousal Support: Spousal support is payments to an ex-spouse that is awarded by the court and detailed in the official divorce decree or separation agreement.  Spousal support is also called alimony.

Termination of Parental Rights: A legal order to end the child-parent relationship permanently.

Visitation: Visitation refers to the rights of non-custodial parents to spend time with their child.

Frequently Asked Questions

 

Paternity:

Why is it important to determine paternity and when should we do it?
Ideally, paternity should be established at the hospital when the baby is born (or as soon as possible thereafter.) It is important to determine paternity as soon as possible because the court will not make any orders regarding visitation, custody, or support until paternity is legally established.  

What is a Declaration of Paternity (DOP)?
A DOP is a legal form that both parent sign voluntarily either at the hospital when the child is born or shortly after that establishes who the father of the child is without the parents needing to go to court.

If a parent doesn’t sign a DOP voluntarily, how does paternity get established?
The mother will need to file a petition with the court (the father can also file a petition to be served to the mother) and then the parents will be summoned to the court to begin the process of establishing paternity.

What if a man does not believe that he is the biological father of a child, even if the woman believes that he is?
This is where genetic tests – likely a DNA test – is used to determine the child’s biological father. The court will order this testing, and it can only be done by agencies that the court has pre-approved.  Sometimes, the costs of such tests are passed on directly to the parties involved in the matter.

Can a woman receive child support from a man she believes to be the father of her child even if paternity has not been established?
In order for the court to order someone to pay child support, paternity must be established.  By law, parents are required to support their children financially, so it is in the child’s best interest for paternity to be established as soon as possible.

Can a father’s name be removed from a birth certificate?
Yes, but only by court order.

If a woman knows that a man is not the baby’s father, can she still name him as the father?
No, this is illegal.

Custody:
What is the difference between legal and physical custody?
If a parent has physical custody, they are responsible for caring for the child day-to-day – the child lives with this parent and they take care of their physical needs. Legal custody gives the parent (sometimes both parents) the rights to make important decisions for the child, on things like education and healthcare.

Can my child determine which parent he/she wants to live with?
In California, a child who is 14 years or older can share their preference with the court, and the court must take their preference into consideration unless it is determined that it is not in the child’s best interest.

We are getting divorced – it was a mutual decision, and we want to figure out our custody arrangement on our own. Do we need to get the court involved?

Yes, if you and your spouse can figure out custody and visitation on your own, then all the court needs to do is approve your agreement. However, in most situations, it is advisable to at least consult with an attorney before finalizing any agreement, as they are long-standing.

Do my parents have a right to custody or visitation?
Grandparents do have legal rights to visitation with their grandchildren – this is something they may need to work with an attorney to enforce if they are being denied time with their grandchildren.  

When does court-ordered child custody end?
Typically, custody ends when the child turns 18 or gets married. In California, a person is considered an adult after age 18 and the custody laws do not apply.

If I do not regularly see my child or have physical custody, do I have to pay child support?
Yes – matters of custody and visitation are separate from child support. If you are being prevented from seeing your child, you need to get the court involved and may need an attorney to assist you. Regardless, you can’t stop paying child support if it has been ordered by the court.

 

Termination of Parental Rights in California:


What is the termination of parental rights?
This is a court order that permanently ends a parent-child relationship, thus ending all custody and visitation and responsibilities like child support.

Is termination of parental rights voluntary?
It can be voluntary by the parent or parents to allow for the child to be adopted.  It can also be mandated by the court if the court finds one or both of the parents to be unfit.

Will the court terminate parental rights and leave the child parentless?
Typically, the court will not terminate parental rights unless there is somebody to assume those rights – i.e. the child is going to be adopted.

If my child’s other parent is absent and hasn’t had contact with my child in years, can I ask to have their parental rights terminated?
No – a lack of contact isn’t grounds for terminating parental rights, however, in some cases where there is a stepparent adoption pending, the court may consider this the absent parent to be guilty of child abandonment, and may terminate their rights.

 

What Questions Should I Ask My Lawyer?

When you are looking to hire a lawyer to help with your divorce, you should consider their background, and experience with some of the issues you anticipate that you will face in your divorce.  You will also want to ensure that they are in good standing with the State Bar of California (you can check this at www.calbar.ca.gov) and that they have references from satisfied clients.  In addition, you may want to consider asking your lawyer the following questions:

 

  • What is your approach to solving this sort of dispute?
  • Will you be working this matter or will it be someone else in your firm?
  • Do you know the family law judges who we may appear before?
  • Are you comfortable representing someone in my situation?
  • How long do you think my proceedings will take?
  • What kind of resolution do you think I can expect?
  • How do you communicate with your clients and provide updates?

 


Other Resources

The Superior Court of California County of Orange – Family Law
www.occourts.org/directory/family

Orange County Bar Association Family Law Corner
http://www.ocbar.org/OCLawyer/FamilyLawCorner.aspx

Orange County Child Support Services
http://www.css.ocgov.com/

California Department of Child Support Services
http://www.childsup.ca.gov/

 

If you have any questions or need some guidance during the divorce process, please contact Moshtael Family Law.  We offer free consultations and look forward to helping you and your family get a fresh start. For more about Moshtael Family Law and our team of experienced attorneys, visit www.moshtaellaw.com

Orange County, Los Angeles County, San Bernardino County, Riverside County

Receipt of information on www.MoshtaelLaw.com is not intended to create, and receipt does not constitute, an attorney client relationship. The information is not intended to substitute obtaining legal advice from a California family law attorney. No person should act or rely on any information in this site without seeking the advice of an attorney.