California Child Custody

For some couples, child custody can be one of the single most contentious issues of a divorce. Divorce affects more than 100,000 children a year in California. That's why California family law establishes a detailed process through which Divorcing Couples can try to reach agreement on their custody arrangements.

The state leaves much of the decisions about custody up to the parents, unless there is abuse involved. It's important to remember that if your spouse is abusive, either to you or the child, or if your spouse is neglectful of the child in a potentially dangerous way, you must have documentation to help protect your child custody rights.

Report the abuse to police, take out a restraining order, enlist the help of witnesses to the abusive or neglectful behavior. Write down everything. If you have to, after speaking to a family law attorney, hire a private investigator to get video footage of neglect, such as leaving the child in a car alone, or keeping a child in a home with no food.

Sharing child custody in California

Once a couple separates, it's up to the parents to develop a "parenting plan" that details where the children will live, how the parents will handle visitation, and who will make decisions regarding the children.

That parenting plan, also called a "time-share plan," can be worked out between the parents themselves or with the help of family law attorneys. When they have reached an agreement, a California family law judge has to sign off.

If the two sides are unable to agree on a child custody agreement, the next step is family court mediation, where professional counselors will listen to both parents, then try to help them reach a middle ground. In some California counties, the mediator also will submit written recommendations to the judge.

More than 80,000 cases a year go to mediation in the state, according to the Judicial Council of California. About 65 percent of them involve allegations of domestic violence.

Mediation does not always work to resolve child custody disputes. In those cases, custody decisions are left up to the judge, who is legally obligated to choose in the best interests of the child. The judge cannot automatically grant custody to the mother, or the father, for that matter.

Getting custody from an abusive spouse

However, a history of abuse can rule out one parent, if that parent has committed abuse against the child or other parent within the last five years, and that abuse was documented by a court when it happened. Then, the judge cannot grant child custody to the abusive parent, unless he finds that it would not harm the child's best interests.

To make that determination, the judge has to consider whether the parent has committed any further abuse; followed the instructions of any restraining orders; or successfully completed any court-ordered domestic violence prevention, substance abuse prevention or parenting classes.

Even if there has been no documented abuse, if one spouse believes the other to be a danger to the child, that spouse can raise those questions in the child custody hearings. But be prepared to show proof, such as testimony that the parent left the child unattended, abused drugs or alcohol in the child's presence, or neglected to care for the child.

Best interests of the child

Otherwise, the judge has to refer to the "best interests" criteria to settle child custody disputes. He will be looking at the parent's ability to take care of the child, and the child's age, as well as the emotional ties between the child and the parent, and the child's ties to the current home, school and community.

The judge also may order a psychological evaluation of the entire family to help him make his child custody decision.

In the end, he can order joint physical custody, where the child splits time between both parents, or sole physical custody, where the child lives with one parent. Regardless of the physical arrangement, the parents can still share joint legal custody, meaning they both make decisions for the child, or one will get sole legal custody also.

The parent who does not have physical custody of the child more than half the time can receive visitation rights. Or, in cases of previous abuse, the parent can have supervised visitation or be denied any visitation.

Clearly, the process can get complicated, particularly when one parent is potentially dangerous, or a couple just can't agree. Hiring a California family law attorney is a helpful option for navigating child custody issues