Awarding Child Custody in CA

One of the most emotional aspects of a marital dissolution case is dealing with Child custody issues. Sadly enough, this is an area where most parents play games with each other trying their best to deprive the other parents of their right to maintain relationship with their child. Child custody comes in two parts, 1) physical custody and 2) legal custody. Physical custody may be awarded solely to one parent or jointly. Sole physical custody means that the child will reside primarily and under the supervision of one parent subject to visitation from the other parent upon order of the court. Family Code §3007. Joint physical custody on the other hand means that the child gets to spend frequent and continuing contact with both parents. Family Code §3004. The court would state specifically the periods of time the child will be under the supervision of each parent.

Legal custody on the other hand deals with the right and responsibility of a parent to make decisions regarding the health, education, and welfare of the child. Family Code §3006. Examples would be decisions such as where the child shall attend school, whether the child can travel to another jurisdiction or state, legal decisions involving the child. In cases where joint legal custody is ordered by the court, either parent alone can make decisions concerning the health, education, and welfare of the child unless otherwise specified in the order.

In making its determination on child custody issues, the court considers various factors depending on the specific facts of the case. The court usually follows the public policy of ensuring and encouraging the child’s frequent and continuing contact with both parents after the divorce unless it would not be in the best interest of the child. Family. Code §3011. If the court is inclined to order sole custody to one parent, the consideration boils down to which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent. Family Code §3040(a)(1). A major factor that would tilt the courts decision is incidents or history of child abuse and domestic violence. This can be from the part of a parent, a parent’s co-habitant, or other person to whom a parent has a relationship with. The child’s amount and nature of contact with the parents is also another factor considered. Family Code §3011(c). Other factors that can be considered are the parent’s use of controlled substance, prior criminal convictions and registration as a sex offender, and existence of restraining order against a parent.

The family code requires that the parties go to mediation and attempt to agree on the custody issue prior to the court hearing the contested case. Family Code §3170(a). If the case is not settled in mediation, it gets decided in court through a contested hearing. At times, the court will order a child custody evaluation if it determines that it would be in