Custody of minor children is one of the most difficult problems that parents face during divorce. When a marriage between two adults ends, the task of separating assets is always complicated, but dividing parenting time with a child is even more difficult.


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Find a Family Law Attorney for Child Custody Battles

The first step for parents who have been served with divorce papers or who wish to modify an established child custody agreement is to hire the best Child Custody Attorney they can find to ensure that their best interests, as well as those of their children, are represented by an experienced Child Custody Attorney.

Possibilities for Such a Custody Agreement

As part of the divorce process, a divorcing couple with minor children must present to the court a formal parenting arrangement, also known as a "custody and visitation agreement." The arrangement specifies child custody, including parental time and visits for each parent. A skilled family law attorney will assist parents in discussing future custody terms and preparing a mutually agreed-upon agreement to bring to the court. If the parents are unable to agree on the terms of a plan, the parties will be heard in court, and a decision will be made by the judge. In presenting the case to the judge for child custody, competent and experienced Child Custody Lawyer would be invaluable.

The word "child custody" refers to a parent's legal and realistic relationship with their child, and it refers to the parent's right to raise, care for, and make long-term decisions regarding the child's education, welfare, and religious upbringing, among other things. It is customary for the child's parents to share the burden of making these critical decisions and agreeing on what is best for the child. When parents split or divorce, however, determining who gets custody can be a contentious issue that necessitates the assistance of a Child Custody Lawyer.

When a parent's physical and legal custody and upbringing of a child or children is in dispute during a divorce case, the court can intervene and determine which parent will have physical and legal custody. Depending on the circumstances of the situation, child custody can be given to one parent or both parents jointly.

3011 of the California Family Code

The main consideration in a child custody case is the child's best interests, and the court will weigh the following considerations when making a child custody decision under California Family Code 3011:

  • The child's health, safety, and well-being
    • Any history of violence by one parent against the other parent, a child to whom the person seeking custody is related or has a caring relationship, or a "parent, current spouse, or cohabitant" of the person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship
  • The frequency and nature of communication with both parents
  • Either parent's habitual or continuous alcohol abuse, or habitual or continuous illegal use of controlled substances or prescription controlled substances.

In divorce proceedings, the court will usually grant joint or shared child custody wherever possible, based on the best interests of the child, barring any of the above concerns, in order to allow for regular and ongoing communication with both parents.

What Is the Difference Between Physical and Legal Custody?

The most important thing to note about child custody is that the judge in a child custody case is concerned about what is best for the child, not the parents and that the court will adopt a variety of custody arrangements to meet the child's needs. There are two forms of custody in a divorce case involving children: physical child custody and legal child custody.

You can ask for more in-depth explanations from your Child Custody Attorney, since one case isn't always like every other child custody case.

Physical Custody

The most common form of child custody arrangement is physical custody, which refers to which parent the child will reside with on a daily basis. When parents split or divorce, the main concern is which parent would be more involved in the child's day-to-day life. The parent who has been given primary physical custody by the court is referred to as the "custodial" parent, while the other parent is referred to as the "noncustodial" parent. The parent who is in charge of the child's regular care and supervision is known as the custodial parent. In most child custody cases, the noncustodial parent who does not have physical custody is given visitation rights, which allows him or her to spend daily, uninterrupted time with the child.

Legal Custody

There is also the issue of legal custody to remember. Legal child custody refers to a ruling that grants a parent the authority to make long-term decisions regarding their child's health and upbringing, such as decisions about the child's schooling, medical treatment, and religious instruction. Judicial custody is granted to both parents in the majority of child custody situations, a situation known as "joint legal custody." Parents who have shared legal custody of a child participate equally in making decisions about the child's health and upbringing, and they must collaborate to make decisions that best meet the child's needs.

Sole Custody

If a court finds one parent incompetent or incapable of caring for or making important decisions regarding the child's health and upbringing, the other parent may be given sole custody. A parent who has sole physical and legal custody of a child has the legal right to make decisions about the child's health and upbringing without consulting the other parent. When one parent has a history of violence, drug addiction, or other illegal activity, this parent will still be granted visitation, but it will be severely restricted.

Custody by a Third Party

A grandparent, guardian, family member, sibling, or friend may receive this honor.

When granting custody to one of the child's parents would be physically or emotionally detrimental to the baby, third-party custody is granted. While the court cannot grant guardianship, when the facts demonstrate that the parents are unable to care for the children, a third party will take the first step in seeking custody.

The court may decide on the child custody appeal, and if the court decides and determines that this agreement is in the best interests of the child, the guardian will be granted physical and legal custody of the child.

In California, how does a judge decide custody?

According to California law, the court starts the custody assessment by assuming that both parents are equally entitled to custody of the child—in other words, the judge does not start the evaluation with prejudice against one parent or the other. (California Family Code 3010 (a))

The court would weigh the following factors when determining what is in the best interests of the child:

1. The children's ages

Despite the fact that the "tender years" theory is no longer in use, some judges believe that younger children should remain with their mothers, particularly if the mother has been the primary caregiver. (A breastfeeding infant, for example, would undoubtedly do so.)

2. The living condition of each parent

The topic of where parents live and how it affects custody is a bit of a chicken-and-egg situation. Custody of the children is often given to the parent who remains in the family home because it provides the children with security and consistency in their everyday lives. For the same purpose, the parent with custody is often given the family home.


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Expect to get primary custody of your children if you sleep in your best friend's guest room until you get back on your feet after the divorce. Make sure your living situation represents your desire to spend a considerable amount of time with your children. The judge's decision will be influenced by the distance between your home and your spouse's. The closer you are, the more likely the judge would order a time-sharing arrangement that allows both parents to spend significant time with their children. Their school's venue, as well as their social and sporting activities, will play a role.

3. Each parent's ability to support the other's child-rearing partnership

The judge will consider your history of cooperating — or not cooperating — with your partner over your parenting schedule. The judge will also want to know if you criticize your partner in front of the children or obstruct visitation in any way. In a custody battle, the more agreeable parent will have an advantage, and a parent who is clearly trying to alienate a child from the other parent will discover the hard way that courts don't like it.

4. Prior to the divorce, each parent's relationship with the children

When a marriage ends, it's not uncommon for parents who haven't been actively involved in their children's lives to suddenly develop a deep desire to spend more time with them. This desire is often genuine, and a judge will value it, especially if the parent has been committed to parenting during the separation period. However, the judge will take time to consider a parent's change of heart and ensure that the custody request isn't being made solely to gain the upper hand over the other parent.

5. Interests of children

A judge will speak with children who are old enough—usually over the age of 12—to learn about their expectations for custody and visitation. Some states require courts to respect children's opinions, while others oppose including children at all. A custody evaluator can also provide information to the judge about the children's preferences.

6. Continuity and stability

When it comes to children, judges prefer the status quo, and most of them feel that adding more adjustment to the already stressful transition of divorce is harmful to children. So if you argue that things are perfect, you'll have an advantage over a partner who wants to alter the custody or visitation schedule that is already in place.

7. Sexual orientation

If you and your partner are both legal parents of your children in Connecticut, the District of Columbia, Iowa, Massachusetts, New Hampshire, New York, or Vermont, or in a domestic partnership or civil union in California, Hawaii, Illinois, Nevada, New Jersey, Oregon, Rhode Island, or Washington State, your sexual orientation would have no bearing on the court's decision. You will be held to the same requirements as all other divorcing couples. Some states have laws prohibiting judges from denying custody or limiting visitation based solely on sexual orientation. Also, in those states, there's no guarantee you won't run into a homophobic judge.

In certain states, courts are permitted to recognize sexual orientation as a significant factor in custody and visitation decisions, which they often do. Judges in those states also rule that a parent's same-sex partner cannot be present while the children visit. In the worst-case scenario, parents' access to their children could be restricted due to their sexual orientation. The same can be said for transgender parents, who can face far more discrimination than same-sex parents, as well as a lack of understanding of the transgender experience in many courts.

8. Negligence or abuse

  • Obviously, if a parent has abused or neglected the children, a judge will place restrictions on the parent's interaction with the children.
  • Since every circumstance is unique, the judge in your case might consider other factors when determining custody.

Additionally, California custody law allows the court to consider a child's view on custody as of January 1, 2012. (initial determination or modification). The court will offer considerable weight to the choice if the child is at least 14 years old and mature enough to convey it.

If the court determines that the desired custody agreement is not in the best interests of the child, the judge will grant custody based on the other factors. A court can recognize a younger child's choice for custody, but it will not be given as much weight as an older child's decision. (California Family Code 3042.)

When Would the Court Take a Child's Preference into Account?

  • When a child is of appropriate age and capacity to voice an intelligent opinion on custody or visits, California courts must understand and give weight to the child's choice. (California Family Code 3042 (a)) If a child is at least 14 years old, the law requires him or her to express a custody desire unless the judge feels it would be harmful to the child.
  • While the legislation states that children must be at least 14 years old to express an opinion, there is no set age at which a judge can consider a child's viewpoint. California law also allows a child under the age of 14 to testify about a custodial choice unless the court determines that it is not in the child's best interests.
  • When a court forbids a child from testifying about his or her custody choice, the judge must find some way for the child to show his or her feelings, such as through a custody evaluator. (California Family Code 3042.)

It's important to remember that just because the law allows a child to express an opinion doesn't mean the judge would obey the child's wishes. Children cannot choose where they want to live until they reach the age of eighteen.

Each case is unique, and the judge will use his or her discretion to determine how much weight to assign to the child's choice. The views of older children are usually valued more than those of younger children by courts.

When determining how much weight to assign the preference, the judge will take into account the child's reasons for choosing one parent over the other. For example, the court agreed not to give much weight to a boy's testimony that he chose to live with his father because he was less strict than his mother.

However, in another instance, a child claimed that he preferred to live with one parent because that parent was closer to his friends and the school he had attended his whole life; the judge gave this child's choice a lot of weight.

Courts are reluctant to uproot a child from a stable custody agreement, so you must clarify to the court how a shift of circumstances after the previous order supports a shot at custody.

Is it necessary for children to testify in court about their custody preferences?

In California, the judge decides on a case-by-case basis whether the child can testify in court. When a child is older or more mature, the judge is more likely to authorize them to testify in court. The judge, on the other hand, would never compel a child to appear in court if the child does not want to.

  • When a child testifies, the judge has the authority to restrict the questions asked by the lawyers in order to protect the child from being harassed or humiliated.
  • If the child refuses to testify about his or her custodial choice, the judge will seek the child's opinion in other ways. The judge may, for example, appoint an evaluator, prosecutor, or mediator to meet with the child and then testify in court about the child's preferences.
  • A guardian ad litem (a Child Custody Attorney who represents the child) may also be called to testify regarding the child's feelings about custody. (California Family Code 3042 (f))
  • Alternatively, the court can decide to make the child testify in chambers, away from the parents; this is common for younger children or where the child will be testifying about sensitive topics.

If the parents agree that the judge will meet with the child alone, the court reporter and attorneys must be present when a child testifies in a judge's chambers.

Can Custody Orders Be Modified?

When it comes to custody, it's a common rule of thumb that children benefit from stability. It's also common knowledge that as children get older, their circumstances can change sufficiently to necessitate a new custody order. It's always better to have a talk with the child's other parent about a change in custody, as it is with most custody issues.

  • The court will accept your arrangement and establish a new custody order for you if you can agree to new terms. If you can't come to an agreement, the court will have to review the case to see if a modification is needed.
  • The requesting parent must submit a formal motion to the court explaining why the change is in the best interests of the child. (California Family Code 3087.) You'll also need to have a persuasive justification for your request.

Courts are reluctant to uproot a child from a stable custody agreement, so you must clarify to the court how a shift of circumstances after the previous order supports a custody claim.

If the court decides that changing the custody order is in the child's best interests, the judge will consider the best interest considerations as well as the child's viewpoint (if the child is at least 14 years old.) (California Family Code 3042.) When it comes to a younger child's opinion or choice, however, the court has discretion.

While your personal status quo can be a huge factor, your Child Custody Attorney may able to form strategic arguments that might present you in an even more favorable light. Even with objective requirements, a little swaying might still come a long way.

What Is Visitation and How Does It Work?

When a court grants exclusive physical custody to one parent, it usually includes a visitation arrangement to ensure that the noncustodial parent and child spend enough time together. Alternating weekend overnight stays, dividing holidays and school breaks, and prolonged visitation over the summer are all examples of a traditional calendar.

Pick-up and drop-off places and times, as well as parental responsibilities for transportation, are often included in visitation schedules (which parent will drop the child off vs. pick the child up). Parents should make a schedule that works for both the parents and the child, and the court will allow it if it is in the best interests of the child.

If the noncustodial parent has a history of absence or assault, the judge can only grant supervised parenting time. The court may appoint a visiting supervisor for the family, and the parent will be required to meet with the child at a court-approved location rather than at the parent's home. Depending on the circumstances, the court could grant supervised visitation with or without other restrictions. If a judge allows supervised visits to a parent who has a history of substance abuse, the court can also require the parent to attend outpatient counseling or meetings before deciding if unsupervised visitation is appropriate.

In certain severe cases, the child's best interests can dictate that the child not visit the abusive parent at all.

California's Custody and Visitation Orders: Modifications After the Fact

Custody arrangements and visiting orders often need to be changed or modified over time. An example of this is when a parent's and child's lives change and evolve with new careers, partners, friends, or schools, the current custody or visitation order can no longer be in the best interests of the child. A modification of the terms of the custody or visitation arrangements may be requested by either parent. (California Family Code 3087.)

In case the parents wish to amend the custody or visitation order, they will apply a new arrangement to the court for approval, just like any other custody-related matter. If one parent wants to amend the orders and the other doesn't agree, the requesting parent must file the necessary paperwork with the court. As your Child Custody Lawyer for more information when unsure.

What to Expect at Your Family Court Services Appointment

The Family Court's Local Rules mandate that parents attend mediation services offered by the Family Court Services if an order for child custody or visitation is sought (FCS). Since family court judges put a great deal of weight on the FCS mediator's opinion, success at FCS mediation is critical to the success of your child custody case.

The parents can present information about the custody of their children to a court-appointed mediator at the FCS appointment. Documentary evidence, such as affidavits from friends and relatives, can also be presented by the parents. Consider one of our prescreened California Lawyers in your Cal Bar Attorney Search.


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Both parents and the family court judge will receive an FCS Report and Recommendation from the FCS mediator. The mediator's decision takes into account all of the details gathered during their consultation with the parents. Before issuing a suggested parenting plan, the mediator will review the file and assess any interaction they've had with other third parties on the matter.

Each parent has 10 calendar days from the date they receive the recommendation to review and respond to the details in the study. If the FCS report is not obtained within the 10-day time span, the family court will grant a continuance of the hearing at the request of either parent.

Developing a Co-Parenting Strategy

Parents who are going through a divorce or single parents planning to divorce face the daunting challenge of forming a co-parenting partnership that is best for the baby. When developing a child custody schedule that works, the parents must take into account their work and school schedules. The primary concern must always be the children's best interests.

The best co-parenting and child custody plans are those that enable both parents to see their children on a regular basis. In true joint parenting arrangements, the parents typically alternate weekends and divide weekdays according to their schedules.

In any case, it is often preferable for parents to collaborate and be flexible when it comes to their children's schedules. The last thing you want is a judge dictating the terms of your parenting strategy because you couldn't come to an agreement on your own. Unfortunately, there are occasions when there is no other choice.

Always keep in mind that in cases involving infants, taking a child-centered approach is critical to success. This strategy is also formed and proposed by your Child Custody Attorney, in favor of your interests.

Evaluation of Private Custody

In complicated child custody cases, high-conflict child custody cases, and cases where there are claims of substance abuse, alcohol abuse, domestic violence, or mental illness, one parent can seek the assistance of a Child Custody Lawyer or therapist who specializes in child custody and visitation issues.

The group requesting a private custody assessment does so instead of going to FCS mediation, and whether the other parent agrees, the private evaluation must be ordered by the judge.

An Evidence Code "730 Evaluation" is conducted by the private custody evaluator. After meeting with both parents, the children, and all other third parties concerned with the family, the evaluator submits this report to the court. This assessment is considered admissible evidence at the child custody hearing and carries a lot of weight with the family court judge.

Private child custody assessments are costly, but they are often well worth the money when conditions necessitate them.

Orders for Emergency Child Custody

In general, a family court judge may not grant emergency custody orders unless there is proof that the minor child is in imminent danger or is about to be taken from California without the express consent of the other parent.

If a legitimate threat exists, it is important that you respond quickly.

California child custody and Single Parents

When a child is born to unmarried parents in California, the question of parental rights can be difficult to resolve. If the parents aren't married, the court holds each of them accountable in various ways. If any side wants their rights changed, they must file a lawsuit in family court. Due to the complexities of this matter, it is important to consult with a family lawyer for this move.

A Mother's Rights

When the parents of a child are not married, the mother is given sole custody of the child. This empowers her to make independent decisions on behalf of the boy. However, unless a child maintenance order is in place, she is solely responsible for the child's financial well-being. If she wants child support from the father, she'll need him to prove the child's parentage.

Unmarried Father's Rights

If an unwed father wishes to exercise certain rights, he must first prove that he is the father. Even if his name appears on the birth certificate, he does not have legal custody of the infant. As previously stated, if a paternity test determines that he is the parent, he will file a lawsuit in family court to have custody status modified. He may also make demands for child support at this time.

It's important to remember that verbal agreements between parents over child care, custody, or any other aspect of the child's life aren't legally binding or recognized by the court.

What does the judge look for?

The parent seeking custody must be able to meet the physical and emotional needs of their child. What are the considerations that judges make when deciding on child custody? Having a competent Child Custody Attorney by your side will speed up the process and give you a better chance of winning.

Laws On Child Support

Child support requirements are outlined in sections 4050-4076 of the California Family Code. The following is from the Code:

  • The primary responsibility of the parent is to help the infant.
  • Child care is a shared responsibility for both parents.
  • Every parent's income and level of financial obligation are taken into account by the court.
  • The court's primary duty is to protect the child's best interests.
  • The custodial parent would most likely shoulder a large portion of the child care burden.
  • If you don't pay child support, you'll face one or more legal consequences.

In most cases, the court will designate a custodial parent and a noncustodial parent when determining child care.

  • Custodial Parent - A custodial parent is a parent with whom the child spends the most time. As a result, they take on a considerable portion of the child's day-to-day duties. The rights of the custodial parent differ depending on how the court separates each parent's physical and legal obligations.
  • Noncustodial Parent - According to the court's ruling, a noncustodial parent does not have physical custody of their child. Even if the noncustodial parent may not have primary custody of the child, they may have equitable legal custody rights, including the ability to make decisions on the child's behalf.

Child care in California stops when the child reaches the age of eighteen. Child support ends when the child graduates or turns 19, whichever comes first, whether the child is already in high school at the age of 18.

How is Financial Aid Calculated?

When assessing child support, the courts take into account the following financial deductions or other items:

  • Gross earnings
  • The number of children who need assistance
  • Time spent with the child
  • Deductions for income taxes available
  • Health insurance for children
  • Payroll deductions
  • The cost of child care

The court can add imputed income if a parent attempts to artificially reduce their income. Imputed income is money that the court credits or attributes to a parent despite the fact that the parent does not receive the money. To ensure that the child's financial needs are met, a judge will impute wages. It prevents a parent from ignoring their financial obligations.

Making Modifications

If a child support order has been formed, a parent may request a modification if they can show that their financial status has changed significantly. The following are some examples of situations that could qualify:

  • Income fluctuations
  • Jobs loss
  • Involuntary incarceration
  • Having a child from a previous relationship
  • Changes in the amount of time you spend with your child
  • Changes in the needs of the child

If both parents consent to the amendment, the court will decide whether or not to grant the request. If neither parent agrees to the amendment, the defendant must file a petition with the court requesting one. Until the court accepts the adjustment request, all parents must adhere to the current child support agreement.

Find a Child Custody Attorney in California

1000Attorneys.com is a California Bar Association Certified Free Attorney Referral Service that can refer you to the best Child Custody Lawyer fit to handle your case. You can contact us through our 24/7 live chat (or complete our case submission form) for a free initial consultation.