Understanding the Custody Framework
Child custody is a complex matter, whether in the context of a divorce, separation, domestic violence or child abuse allegations, or move-away cases. Parental rights and children’s rights obviously take precedence, but the state also has an express interest in the welfare of minors. This may increase the number of participants involved in any dispute regarding child custody: Aside from institutions that may have a statutory responsibility to intervene, depending on the age of the child a guardian may be appointed to represent the child independently, as an agent ad litem. The purpose of independent representation in court is to allow children to express their own custodial preferences. Because of children’s dependence on adults, courts might undertake swift protective measures on their own accord, implicating due process rights of the parents.
The public policy of California State, expressly articulated in Family Code Section 3020, is ”to assure that children have frequent and continuing contact with both parents” after a divorce or separation. However, the state also has an interest in the wellbeing of minor children, and denounced child abuse and domestic violence. Under circumstances involving domestic violence, child abuse, or a threat to the child’s health and safety, as listed in Section 3030, California courts may either deny custody or visitation rights. Also, in instances where one parent abandons the child, is unable, or refuses to take custody, the other parent is entitled to sole custody.
California Family Code distinguishes between sole physical and sole legal custody, and carves out visitation rights for the noncustodial parent: If awarded sole legal custody, one parent holds the exclusive responsibility for “decisions relating to the health, education, and welfare of a child.” However, although the underlying idea of sole physical custody assumes that the child will reside with one parent, the court has the power to order visitation.
Under California law, the mother and the father (or the presumed father), “are equally entitled” to the custody of an unemancipated minor. However, according to the US Census Bureau, in 2009, only 1 in 6 custodial parents nationwide were fathers (17.8%). Notably, this number includes parents who were never married. So, although over 80% of custodial parents were women, 36.8% of custodial mothers were never married. The total number of children living in sole custody arrangements was 22 million.
The idea that a mother should play the dominant role in child rearing only became prevalent in the middle of the nineteenth century , according to law professor J. Herbie DiFonzo. In the colonial era, the courts usually awarded the sole custody to fathers, he says. However, the idea that a mother is the most appropriate person to have sole custody of a very young child, or the “tender years” theory, is no longer applied by the courts: the judges are expected to base their decisions on the best interest of the child. Although the notion that sole custody is the most beneficial to the child has been discredited, because the decision on custody award is in the discretion of the court, parents might want to consider resolving the issue by mutual agreement, and create a parenting plan, to avoid the uncertainty and the cost associated with court process.
California Family Code Section 3011 contains an express provision that if the parents agree to a custody or visitation plan in writing, the court will generally enforce it (unless there is danger to the wellbeing of the child.) But, while the law permits the courts and the family “the widest discretion” in identifying the best possible outcome for the child, it also requires that “the child’s need for continuity and stability” be addressed and the “established patterns of care and emotional bonds” be preserved.
THE BEST INTEREST OF THE CHILD
California courts consider the following factors, when deciding on the course of action that is in “the best interest of the child:”
- health and safety of the child;
- history of abuse (committed by the person seeking custody against: another child in his or her custody, the other parent, spouse, cohabitant, fiancé or partner of the person seeking custody);
- nature and frequency of contact between the child and both parents;
- use of controlled substances, alcohol, or prescription drugs by either parent.
A decision regarding custody may potentially include allegations or a finding that granting custody to a parent would be detrimental to the child. In this respect, Section 3041 of California Family Code provides that:
- Allegations of detriment shall not appear in the pleadings.
- The court may exclude the public from the hearing on this issue.
- Although generally clear and convincing evidence (meaning, more than “mere” preponderance of evidence) is required, a finding of detriment to the child is distinguished and separate form finding that a parent is unfit.
The court may also order drug or alcohol testing, although the test results are to be kept confidential, as a sealed record, and without more, cannot be the sole basis for child custody award. The courts are expressly prohibited from giving a parent preference because of the parent’s sex. Also, the immigration status of a parent (or a guardian) is irrelevant, when considering child custody.
The term joint custody means that both legal and physical custody shared by the parents. California Code defines joint legal custody as a situation when “both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” Joint physical custody requires that each parent is allowed “significant periods of physical custody.” According to Time Magazine, a recently published Swedish study confirmed that children who live in two households, with both parents are experiencing less stress and have fewer problems than children who live with merely one parent in so-called split custody arrangements. This squarely contradicts the opinions, which emphasize the negative impact on shuttling a child back and forth.