CHILD CUSTODY

The experienced attorneys at Richard Ross Associates have spent more than 30 years practicing law in the counties of Los Angeles, Ventura and surrounding areas. With a Certified Family Law Specialist on the team, they are equipped to handle all Family Law matters including those involving child custody.

Types of Custody

In Family Law there are several different ways the custody of the child(ren) may be arranged.

• “Sole legal custody” means that one parent has the right and responsibility to make decisions concerning the child’s health, education and welfare.
• “Joint legal custody” means that both parents shall share the right and responsibility to make the decisions relating to the health, education and welfare of the child. Note: Serious parental strife and inability to cooperate with other parent are reasons to deny request for joint legal custody.
• “Sole physical custody” means that a child shall reside with and under the supervision of one parent, subject to the court’s power to order visitation.
• “Joint physical custody” means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.

How is Custody Determined?

Best Interests of the Child Standard

Parent’s Habitual Use of Alcohol or Illegal Use of Controlled Substance

Child’s Preference

Best Interest of the Parents

Wealth of Parents

Religious and Social Beliefs

Sexual Orientation and Behavior

Parents Absence or Relocation From the Family Residence in Determining Custody or Visitation

Effects of Court Finding of Domestic Violence

Smoking

Custody Rights of Nonparents

Persons in whose home a child has been living in a wholesome and stable environment have a statutory preference for custody second only to the parental preference.

Guardianship – Once a guardianship has been ordered, a parent seeking to terminate the guardianship must show not only that the reason for the guardianship no longer exists, but also that he or she is fit to resume custody, and trial court must evaluate degree of harm that would result from separating the child from a successful guardian.

Before the court may award custody to a nonparent over a parent’s objection, it must make a finding by clear and convincing evidence than an award of custody to a parent would be detrimental to the child and that the award to a nonparent is required to serve the best interests of the child.

Best Interests of the Child Standard

The “best interest of the child” is a broad concept that involves the following principles: (i) promoting social, cognitive, emotional, and physical well-being; (ii) enabling optimal development as a productive member of our society; (iii) minimizing exposure to danger, abuse, neglect and family conflict; and (iv) ensuring frequent and continuing contact with both parties so far as it is consistent with the above.

It is public policy in CA to:

• Assure that the health, safety and welfare of children shall be the court’s primary concern in determining the best interest of children when making custody and visitation orders, and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.
• Assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship and to encourage parents to share the rights and responsibilities of child rearing, except where the contact would not be in the best interest of the child.
• Assure that the child’s health, safety and welfare, together with the safety of all family members, must prevail if there is a conflict between that policy and the policy of assuring frequent and continuing contact with both parents, and the court’s custody or visitation order must be made in a manner that ensures the health, safety and welfare of the child and the safety of all family members.
• Prohibit against gender preference of “tender years doctrine”.

Parent’s Habitual Use of Alcohol or Illegal Use of Controlled Substance

The court’s determination of what constitutes the child’s best interest shall also include either parent’s habitual abuse of alcohol or illegal use of controlled substance; however, court may require independent corroboration of such allegations.

The trial court is authorized to order drug or alcohol testing if trial court determines by preponderance of the evidence that parent engages in habitual, frequent or continual use of such substances. Testing is confidential, results are sealed and testing is subject to procedural safeguards.

Child’s Preference

There is no specific age when a child can decide where he/she will live; it depends on the age and maturity of the child and the circumstances of the case. The court can consider the child’s preference if it finds that the child is old enough and sufficiently mature to reason so that the child can form an intelligent preference as to custody.

How the child’s preference is presented is left to the discretion of the court. The Family Code gives the court control over the examination of a child witness so as to protect the best interests of the child. The court can preclude the calling of the child as a witness where the best interests of the child dictate and may provide alternative means of obtaining information regarding the child’s preferences. For example, the court can appoint a mental health professional to conduct an evaluation of the child and report back to the court.

Best Interest of the Parents

Except as they affect the best interests of the child, the parents’ interests cannot be considered by the court. The best interests of the child must be elevated above those of the parents. A parent’s intentional frustration of the other parent’s visitation rights should be considered in an application for a change of custody.

Wealth of Parents

The court cannot base a change of custody on a custodial parent having to work and put children in day care while the other parent is a stay-at-home parent.

Religious and Social Beliefs

Religious beliefs alone cannot disqualify a parent from obtaining custody when there is “no compelling evidence that her religious beliefs and observances would be harmful to the children”.

Sexual Orientation and Behavior

Trial court cannot deny custody to a parent solely on the basis of homosexuality. A parent is not necessarily disqualified from obtaining custody when he or she lives unmarried with a member of the opposite sex.

Parents Absence or Relocation From the Family Residence in Determining Custody or Visitation

Court shall not consider a parent’s absence or relocation from the family residence in determining custody or visitation if either:

• Absence or relocation is of short duration and during that time the party has demonstrated an interest in maintaining custody or visitation, the party maintains or makes reasonable efforts to maintain, contact with the child, and the party’s behavior demonstrates no intent to abandon the child; or
• The party is absent or relocates because of actual or threatened domestic violence by the other party.

Effects of Court Finding of Domestic Violence

Upon a finding of domestic violence by a court, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person that has perpetrated domestic violence is detrimental to the best interest of the child.

Smoking

Second hand smoke and its effect on a minor child may be a basis in the consideration of custodial placement.