How Does A Judge Determine Custody in a Divorce?

Carlsbad, CA – Divorce can be a painful process, and the pain can be heightened when children are involved.

A common question parents ask us when they’re going through a divorce is who will get custody of the children. This isn’t always a cut-and-dried answer.

First, let’s address what could happen regarding your children when you separate. The parents have some control over this determination.

“The ideal solution is one that is reached by both parents working together and agreeing upon the outcome,” says San Diego divorce attorney John Griffith.

If that is the case, a copy of a mutually agreed upon parenting plan can be attached to your dissolution papers. Your parenting plan can become a court order and in most cases, a judge will approve a custody plan agreed upon by both parents, according to information available on The State Bar of California website.

Let’s say you can’t agree on custody. What happens then? This is where a judge must step in and make a decision. Factors that may be considered in the judge’s decision could include:

• Your children’s ages
• Each parent’s wishes
• The parents’ physical and mental health
• The quality of the relationship between your children and you/your spouse
• Whether one parent in particular has provided most of the children’s care to date
• Each parent’s living accommodations
• Whether there are confirmed cases of domestic violence
• Your children’s wishes, provided they are “of sufficient age and capacity to reason.”
A judge has several options when determining custody during a divorce. Custody can be awarded to one parent, both parents, or even a different adult based on the children’s best interests.

Joint legal custody means you each will share the right and responsibility of making decisions related to your children’s health, welfare and education, while sole legal custody means a judge will assign to one parent the authority to make those decisions.

Joint physical custody means your children regularly will spend time living with each parent, while sole physical custody means your children live with one parent and the other parents is granted visitation.

“A common misconception about joint physical custody is that your children must spend equal time with each parent, but that isn’t true,” Griffith says.

When a couple can’t reach a mutual agreement regarding child custody, it’s a good idea to seek counsel from a divorce attorney. Your attorney will represent your best interests, as well as those of your child, and will make sure your argument is well-articulated in court.

Our family law practice offers free consultations to those considering divorce. Feel free to contact us today if you need assistance in divorce and child custody issues. We are here to help you through what can be a challenging time in your life.


© 2014 Griffith, Young & Lass, APC. Authorization to re-post and/or share is granted, with the stipulation that Griffith, Young & Lass, APC., is credited as the sole source. Linking to other sites from this document is strictly prohibited, with the exception of herein imbedded links.