Carlsbad Child Custody Lawyer
How Child Custody Is Determined In California
In determining child custody in San Diego, the court focuses on what is best for the child. While each parent may have a different opinion on how the child will be best served, California law dictates that the court starts with two assumptions.
First, health, safety and welfare are paramount. Second, the court assumes that children do best when they have regular contact with both parents.
For custody cases, “health, safety and welfare” covers various situations and circumstances. For example, fathers do not have parental rights to children born from the rape of the mother. Furthermore, judges won’t grant custody or visitation to a parent convicted of child abuse. However, they may limit both if there is documentation of abuse.
Factors that positively influence a judge’s decision are:
- The emotional bonds between the parent and children
- The parent’s history of involvement with the child’s life and activities
- The parent’s capacity to provide for the child’s daily needs
The judge may also consider which parent is more apt to encourage a relationship and contact with the other parent.
When determining the welfare of a kid, the child’s wishes matter, especially if the child is older or more mature. The court will also make every attempt to keep siblings together.
Are you concerned about preserving your parental rights in a Carlsbad child custody case? The best way to protect them is by hiring expert custody lawyers serving Carlsbad from Griffith, Young & Lass. Dial 858-951-1526 or submit an online contact form here.
Navigate This Page:
- Types Of Child Custody
- Can You Get Custody Without Going To Court
- What Is A Standard Child Custody Agreement?
- What To Expect During Your Appointment With Family Court Services
- Creating A Co-Parenting Plan
- Private Custody Evaluation
- Child Custody Modification
- Emergency Child Custody Orders
Types Of Child Custody In Carlsbad
Child custody and visitation issues can be complicated for parents to work through. Understanding the law going into the situation can help tremendously. Every parent should understand the following essential concepts and procedures before pursuing litigation.
In California, there are two types of custody in divorce and paternity cases: legal and physical custody. A family court making orders for child custody in San Diego County will make orders for both legal and physical custody.
- Legal custody orders of children in family law cases address decision-making power. The party
with legal custody has the legal power to make decisions regarding the medical care, schooling and general welfare of the children. Typically, unless there is a good reason to act otherwise, the family court will rule for parents to share joint legal custody of minor children.
- Physical custody orders of children in family law cases address where the children will physically reside and specific scheduling for co-parenting. There are two scenarios for physical child custody orders: joint physical custody or primary custody to one parent (custodial parent) and the right of visitation to the other (noncustodial parent).
Can You Get A Child Custody Agreement Without Going To Court?
You don’t necessarily have to go to court to get custody. A child custody agreement can be agreed upon in mediation so that you and your spouse can both agree on how to spend time with the children as the divorce moves forward.
The first step is for you and your spouse to devise an agreement you can both live with and that is best for any children the two of you share. A custody agreement is a document that is agreed upon by both parties or that is ordered by a judge in divorce court (or decided upon during the mediation process) that stipulates such things as:
- Visitation time spent with the children
- Who will gain primary and secondary custody of the children
- Whether the two of you will split time with the children 50-50
- Child support information
- And anything else that will help you and the other parent raise the children properly
While all the above parameters sound straightforward, they usually are not, especially when you and your spouse don’t get along and you plan to fight for primary custody or other factors. This is where it helps to get the advice of a skilled and experienced lawyer who can help you negotiate your way to fair and even child custody in all regards.
What Is A Standard Child Custody Agreement?
While the above is a good rundown of a child custody document, matters can get a little more complicated than that. Here is all you must consider when forming an arrangement with your soon-to-be ex-spouse.
- Schedule: A thorough child arrangement will include a residential or weekday schedule, which represents the routine you and your spouse will go through as you spend time with the children throughout the week and on weekends. For instance, you may split the children half the week, also known as joint custody. This arrangement works if you and your ex-spouse plan to live close to one another, which keeps the kids in the same school. If you don’t live close by, the noncustodial parent may get the children every other weekend while the primary or custodial parent keeps the kids the rest of the time. Provide another example. Your custody schedule may vary.
- Holidays: This represents the custody schedule with regard to where the children will spend time on holidays, during school breaks and on other special occasions. Agreeing on a holiday schedule keeps either parent from taking the kids across the state or out of the country in secret and without the other parent’s consent.
- Vacations: Here is where both parents will describe the vacation time they wish to spend with the children, where they will go and for how long.
- Special events: One-time events can be listed in this section of the child custody agreement, which represents special times with the children when the regular schedule changes. Examples may include which parent will keep the children in the case of weddings or funerals.
- Other considerations: Also included in most custody agreements are the exact pickup and drop-off times that each parent is required to adhere to. You may list which parent will host upcoming birthday parties, agreements to share medical and school records, and rules not to interfere with the child’s relationship with either parent. Other provisions will include how to handle the children’s medical and dental care, how to handle disputes about the agreement and how to change the arrangement if needed.
What To Expect During Your Appointment With Family Court Services
Any time an order for child custody or visitation is requested, the San Diego Family Court’s Local Rules require that parents attend mediation services provided by the Family Court Services (FCS). Success at FCS mediation is crucial to the success of your child custody case, as family court judges place a great deal of weight on the FCS mediator’s recommendation.
At the FCS appointment, the parents may present information concerning the custody of the children to a court-appointed mediator. The parents may also present relevant documentary evidence, including affidavits from friends and family.
The FCS mediator will issue an FCS Report and Recommendation to both parents and to the family court judge. The recommendation takes into consideration all information obtained by the mediator during their interview with the parents. The mediator will also review the file and assess any contact they’ve had with other third parties regarding the matter before issuing a recommended parenting plan.
Each parent is entitled to take 10 calendar days from receipt of the recommendation to review and respond to the information included in the report. The family court will grant a continuance of the hearing upon the request of either parent if the FCS report is not received within the 10-day time period.
At GYL, we prepare our child custody clients to succeed at FCS mediation and do everything possible to obtain a favorable result.
Creating A Co-Parenting Plan
Parents going through a divorce or unmarried parents looking to separate are faced with the often-difficult task of developing a co-parenting relationship that works best for the children involved. The parents must accommodate work and school schedules when creating a custody schedule that works. The overarching consideration must always be the best interests of the children.
The best co-parenting plans and custody arrangements are those that ensure access to both parents on a regular basis. True shared parenting arrangements generally involve the parents alternating weekends and dividing weekdays into varying schedules.
In any case, it is always best for parents to work together and be flexible with one another regarding the children’s schedules. The last thing that you want is for a judge to dictate the terms of your parenting plan because you were unable to agree to the terms on your own. However, unfortunately, sometimes there is no other choice.
Always remember: Taking a child-centered approach is the key to success in cases involving children.
Private Custody Evaluation
Occasionally, in complex cases, high-conflict child custody cases, and cases where there are allegations of drug abuse, alcohol abuse, domestic violence, or mental illness, one parent may seek the intervention of a psychologist or psychiatrist specialized in addressing these issues as they relate to child custody and visitation.
The party seeking the private custody evaluation does so in lieu of FCS mediation and, absent an agreement from the other parent, that party must request that the court order the private evaluation.
The private custody evaluator conducts what is called an Evidence Code “730 Evaluation.” This evaluation is given to the court after the evaluator has met with both parents, the children and other third parties involved with the family. This evaluation is considered to be admissible evidence at the eventual child custody hearing and holds a great deal of weight with the family court judge.
Private child custody evaluations are very expensive but are often well worth the extra money when circumstances warrant the need for one.
Modifying Child Custody In San Diego County
Generally, and with few exceptions, once a child custody order is made, it is difficult to modify. When requesting a modification to an existing custody order, the requesting party must prove that there has been a substantial change in circumstances to warrant updating the existing conditions of the custody order. This standard comes from the case of Montenegro v. Diaz (2001) 26 Cal. 4th 249.
The change in circumstances could be a change of schedule, a change of location of one or both of the parents, a job loss, a medical condition or any number of significant changes affecting either parent’s ability to adhere to the old custody order.
In order to move forward with a modification absent an agreement from the other parent, the requesting party must move the court to initiate a mediation appointment with Family Court Services and request a court hearing on the issue of child custody modification.
Emergency Child Custody Orders
Generally, a family court judge will not issue custody orders on an emergency basis unless there is evidence that the minor child faces a threat of immediate harm or threat of being removed from the state of California without the express consent of the other parent.
If a threat legitimately exists, it is imperative that you act fast. Contact GYL now if this is the case and we can appear on your behalf in family court within 48 hours to request emergency child custody orders.
Giving You The Answers You Need
Child custody is one of the most complex and confusing aspects of family law. We understand that, in addition to feeling overwhelmed, you probably have many questions. In this section, you can take a look at some of the answers that we frequently provide for our clients.
Is California a 50-50 custody state?
There is no set formula for issuing custody and visitation orders in California. The court system does not automatically grant 50-50 custody. However, it does prefer to grant joint legal and physical custody whenever possible.
How do you file for child custody in California?
If you and your child’s other parent do not see eye to eye on your parenting schedule, you will have to take your case to family court. To seek custody, you must file a document called an FL-300, or a request for custody order, with the courthouse in your jurisdiction. The court will schedule a hearing in which you and your family law attorney appear before a judge to explain your reasoning for seeking custody and the arrangement you want.
How do you modify child custody in California?
You can file a petition to modify your existing custody order if you experience a substantial change in your life such as:
- Relocation out of state
- Relocation to another part of the state
- Substantial change to your work schedule
- Presence of child abuse, substance abuse or mental illness
- Refusal of the other parent to comply with the existing order
Parents can mutually agree to modify an existing court order. If both parents do not agree, you can file a Form FL-300 with the court in your jurisdiction.
How does a parent moving affect child custody in California?
If you are moving to a new residence nearby, the court order will probably not require changes. However, if you want to move far enough away that it could affect the child’s schooling, relationships and time with their other parent, there could be an issue. A custodial parent cannot relocate out of state with the child without first getting written permission from the other parent or without getting a court-ordered modification to the custody agreement.
Do you pay child support with joint custody in California?
In many situations, yes. If the parents have substantially different incomes, the court may order the higher-earning parent to pay child support so the child can enjoy the same lifestyle at both parents’ homes.
Consult With Our Child Custody Attorney In Carlsbad Today!
Griffith, Young & Lass partner Catie Young specializes in child custody cases. Whether you need to negotiate a co-parenting plan with the other parent or you need a skilled lawyer by your side in the courtroom, Catie and our entire team of Carlsbad custody lawyers are here to help.