Los Angeles Child Custody Attorney
The child custody process is often the most emotionally stressful aspect of a family law case. While you can regain lost assets, you can never get back time lost with your children. At Fernandez and Karney, we are Certified Family Law Specialists with over 55 years of combined family law experience. We have successfully handled thousands of custody cases and will use this experience to assist you. Speak with a Los Angeles child custody attorney at Fernandez and Karney today to find out how we can help you.
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 child custody dispute.
Aside from institutions that may have a statutory responsibility to intervene, the court may appoint a guardian as an agent ad litem to represent the child independently, depending on the age of the child. Independent representation allows 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 well-being 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. California law requires judges to base their decisions on the best interest of the child.
The court has broad authority when determining custody. Thus, parents might want to consider resolving the issue by mutual agreement. This may help to avoid the uncertainty and the cost associated with court process.
When deciding to award sole custody, the court will make a decision using the best interest of the child standard. California Family Code § 3011 lists the factors the court considers including:
- Health and safety of the child,
- Any history of abuse, and
- Any other factor the court considers relevant.
While the law permits the courts and the family “the widest discretion” (CA Fam Code § 3040) 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:” (CA Fam Code § 3011)
- health and safety of the child;
- history of abuse by either parent;
- nature and frequency of contact between the child and both parents;
- use of controlled substances, alcohol, or prescription drugs by either parent.
A custody decision may include allegations or a finding that granting custody to a parent would be detrimental to the child. In this respect, § 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.
- While clear and convincing evidence (meaning, more than “mere” preponderance of evidence) is generally required, a finding of detriment to the child is distinguished and separate from finding that a parent is unfit.
The court may also order drug or alcohol testing. 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 law prohibits judges 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 parents share legal and physical custody. California Code defines it 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 each parent, experience 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.
SPEAK WITH A LOS ANGELES CHILD CUSTODY LAWYER
When facing a child custody action, the most important step you can take is contacting an experienced family law attorney. Mr. Fernandez and Mr. Karney are both Certified Family Law Specialists and have a combined 55 years of experience. When fighting for your children, make sure you have a team with a proven track record protecting your parental rights. Call us today for free consultation.