Steven Fernandez |

Child Custody

One year ago, Brad Pitt and Angelina Jolie shocked the world by filing for divorce in California. The power couple had been together for more than 11 years before deciding to end their marriage.

During that 11 years, the couple became parents – both biological and adoptive – to six children. The children range in age from 9 to 16. When Jolie filed the petition for divorce, she requested sole physical custody of all of the children. She also requested that Pitt is granted visitation rights. Pitt and Jolie have agreed to settle their divorce matters privately. However, their divorce raises interesting questions for others who may be in a similar situation.

Types of Child Custody

There are actually two types of custody. The first is physical custody. Physical custody refers to a parent’s right to have their child live with them. Physical custody can be awarded solely to one parent or jointly to both parents. Here, Jolie asked for sole physical custody. If the court granted her request the children would live with Jolie rather than split time between parents.

The second is legal custody. Legal custody refers to a parent’s right to participate in and make legal decisions about their children’s health, well-being, and safety. California law encourages parents to agree to joint legal custody of any children subject to a divorce or separation. One of California’s primary goals is to ensure that children have frequent and continuing contact with both parents after a divorce. When parents share legal custody it encourages active participation in a child’s life.

Responding to a Request for Child Custody in a Divorce Petition

Angelina Jolie requested sole physical custody of her six children. Pitt can do one of three things in regard to this child custody request. First, he can agree to the terms and give Jolie full physical custody of their children. Second, he can contest (fight) her request.

If Pitt contests the custody request they can try to negotiate the terms themselves, utilize a mediator, or take the argument to court. Third, he can ignore the divorce papers altogether. If Pitt ignores the divorce papers his silence will be considered acceptance. This means that six months after he is served the requests in the petition will be entered by the court. Failure to respond to a petition is essentially the same as agreeing to the terms. This is because California is a no-fault state.

Determining Child Custody in California

In California, both parents have equal rights when it comes to the custody of their children. Courts are not permitted to favor one parent over the other because of sex. However, courts will always make custody determinations based on what is in the best interest of the child(ren). A court may consider evidence, testimony, and other information that may be relevant in determining what an appropriate custody arrangement should be. This can include the testimony of any children who would be affected by a custody arrangement.

Kids Get a Say in Custody

Kids who are the subject of a child custody battle can have a say in the matter. California requires judges to hear the testimony of children who are “of sufficient age and capacity to form an intelligent preference.” Children over the age of 14 are considered to have this capacity. Children under the age of 14 who show that they have the maturity, insight, and knowledge to form a rational opinion can also be heard by the court.

In the Pitt/Jolie divorce, the children may be able to testify if they would prefer to live with Pitt instead of Jolie. The oldest child is 16 and would be able to testify. The other five children, who are between the ages of 9 and 13, would have to show that they were mature enough to make an informed decision.

In California, judges are not required to base their custody decision entirely on the child’s testimony. They can (and may be required to) use it as a contributing factor in the final decision. If a child is considered old enough to testify judges often give their input a lot of weight.

Judges are cautious when they hear the testimony of children in child custody cases.This is because it may be easy for parents to try to influence their children’s decision in one way or another. Children may state a preference for a custody arrangement because of trivial differences with a parent.

For example, imagine a child testifies that she would rather live with her father. When asked why the child responds that her father lets her stay up late and eat cookies. Her mom, however, makes her eat broccoli and go to bed early. A judge will not find this reasoning persuasive. If, however, imagine that a child testifies that he has a preference to live with his mother because his father is always working late and doesn’t show much of an interest in him. A judge may find this reasoning persuasive.

Fighting Child Custody Requests

When one parent requests sole physical custody of a child in a divorce the other generally contests it. If a custody battle goes to court, parents must provide evidence to establish why they should be awarded custody. California sees value in keeping both parents involved and will often decide in favor of joint custody. This is true unless one parent can show why the other parent is unfit.

If you have received divorce papers in which your spouse is seeking sole custody of your children you can fight back. Hiring a child custody attorney to handle your case is the best way to get the results you want. Do not hesitate to contact our experienced family law attorneys today. We would be happy to speak with you about your case, explain your rights as a parent, and answer the questions you have.