Santa Barbara Child Custody AttorneysKaspar & Lugay LLP
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Child custody is the most important issue arising out of divorce when children are a part of the family. It is critical that in the emotionally fraught and uncertain time in and around a divorce, you have a guiding hand to help you manage the other legal issues involved, especially those relating to your children. Physical custody, parenting plans, and rights of visitation are just some of the contentious decisions the court may make in a custody battle. You need a legal advocate that is fighting for your best interests every step of the way.
Having an experienced Santa Barbara custody lawyer as that advocate will allow you to focus on the emotional and financial well-being of your family. For example, the standard for all child custody determinations is what is in the best interests of the child. It should come as no surprise that this important phrase has different meanings for different people, so it is important that your lawyer can build your case with his knowledge of California law and his knowledge of your objectives.
At Kaspar & Lugay LLP in Santa Barbara, our child custody lawyers are focused on developing an intimate understanding of you and your goals. With a foundation of trust and understanding combined with family law expertise, our team of exceptional attorneys will secure the resolution you deserve through tenacious advocacy.
Please contact us today to learn more about how we can help you protect your rights and the rights of your family. We are rapidly becoming known as a go-to firm for child custody, divorce, and related family law issues here in Santa Barbara, and we want to meet you to discuss your case.
How Child Custody Is Determined in CaliforniaKaspar & Lugay LLP, Santa Barbara
Child custody and visitation determinations are made on the basis of what “the best interests of the child” are. Under California law, the court will make that determination based on the facts of the case.
Despite some rumors to the contrary, the determination of custody is not biased towards the mother or the father. Similarly, custody cannot be denied to a parent because of things like religious beliefs, disabilities, or the sexual orientation of a parent. In other words, the process is entirely fair and based solely on the best interests of the child.
What determines the best interests of the child under California law?
The court will consider the following factors when deciding what kind of custody arrangement is in the best interests of the child:
- Child’s age and health
- Emotional ties between the parents and child
- Ability of a parent to care for the child, physically, financially and emotionally
- Any history of violence or substance abuse on the part of the parents or others in the home
- Child’s tie to school, home, and community
Other factors that may be considered by the court include:
- Participation of each parent in the child’s activities
- Time spent with the child by each parent
- The existence of negativity or fighting in the home
In the majority of cases decided in California, the “best interest of the child” means continued, frequent contact with both parents through a joint custody parenting arrangement.
Even if this is a desirable solution for all involved, there can be wrinkles that the court will consider, such as a situation where one parent travels frequently for work. In this case, the court may find that the parents should share joint legal custody, but the parent who does not travel should have sole physical custody. In this situation, it is critical that you have a Santa Barbara custody lawyer who can identify these potential issues beforehand and create a plan to get you the outcome you and your family deserve.
How to Get Custody of Your Child
The answer to how to get custody of your child or children in California is by demonstrating to the court that the child’s best interests will be served by being in your legal and physical custody.
There is a strong bias towards both parents having a substantial, healthy relationship with their children. At the same time, it may be that one parent, who is otherwise willing and able, cannot manage physical custody due to a busy work schedule. Is it a fair result for that parent or the children to not allow them to spend any time with that parent? Custody arrangements are seldom black and white, so let’s take a look at physical and legal custody arrangements.
Sole legal custody may be granted in a case where one parent is deemed unfit, or is absent from the child’s life. Since it is in the best interest of the child to have stability and consistency in how he or she is raised, the court may grant full decision-making authority to one parent.
Courts in California prefer custody arrangements in which both parents share decision-making responsibility over their child. This is what is known as joint legal custody. Under this arrangement, both parents have the authority to make important decisions regarding their child’s upbringing. Examples of these decisions include education, major medical care and religious affiliation.
Sole physical custody may be granted by the court in cases where one spouse is a danger to the child, such as when the spouse has been abusive or neglectful or has substance abuse issues.
This does not mean the non-custodial spouse is not allowed to see his or her children, however. The judge in the case will issue an order on visitation that balances the factors involved to ensure the best interests of the child, including safety.
Joint physical custody means that the child splits time between the homes of each parent. The details are part of a parenting plan that is generally worked out between the mother and father and is approved by the court.
Child Custody FAQ
What are "custody" and "visitation"?
When you separate or divorce, part of the process is deciding “custody” of your children, or who they live with and how they will be taken care of. You also need to decide on visitation, which means how much time each parent will spend with the children. There are two kinds of “custody” orders, legal and physical custody. Legal custody is about making important decisions for your children (health care, education, and welfare), and physical custody is about who your children will live with.
“Visitation” (also called “time-share”), on the other hand, is a plan for how the parents or other interested parties will share time with the children.
In California, either parent can have custody, or the parents can share custody. The judge makes the final decision about custody and visitation but usually will approve the arrangement both parents agree on. If the parents can’t agree, the judge will make a decision based on the best interests of the child and other factors.
What is legal custody?
Legal custody is the right and responsibility to make important decisions about the heath, education and welfare of the children. Some examples of the decisions parents with legal custody make include:
- Education or childcare
- Religious activities
- Psychiatric, psychological, or other mental health counseling or therapy needs
- Health and medical choices including doctor, dentist, orthodontist, or other health professionals
- Sports, summer camp, vacation, or extracurricular activities
- Where to live
Legal custody can be “joint,” which means both parents have to agree on the above issues, or it can be “sole” or “primary,” which means one parent is responsible for these decisions.
What are the types of visitation orders?
Visitation is a legal right to spend time with children. Most commonly, the non-custodial parent, or a parent who does not have sole or primary physiscal custody, is granted visitation rights. Other parties, such as grandparents, may be able to claim visitation rights as well at the discretion of a judge.
Supervisied visitation orders may be issued if the safety and well-being of the children require that visits with the other parent be supervised by you, another adult, or a professional agency. Supervised visitation is sometimes also ordered in cases where a child and a parent need time to become more familiar with each other, like if a parent hasn’t seen the child in a long time and they need to slowly get to know each other again.
There are times when a court will not give any visitation rights to a parent. This option is used in situations when visiting with the parent, even with supervision, would be physically or emotionally harmful to the children. In these cases, it is not in the best interest of the child for the parent to have contact with the child.
What does California family law consider when deciding custody and visitation?
The law says that judges must give custody according to what is in the best interest of the child. Judges look at the children’s health, safety and wellbeing to decide whether to give custody to one or both parents. Courts also consider any history of abuse by one or both of the parents.
Courts do not automatically give custody to the mother or the father, no matter what the age or sex of your children. Courts cannot deny your right to custody or visitation just because you were never married to the other parent, or because you or the other parent has a physical disability, or a different lifestyle, religious belief or sexual orientation.
In a few cases, if neither parent is fit to take physical or legal custody, courts give custody to someone other than the parents because it is in the best interest of the children. Usually, this is called “guardianship,” and can be given to extended family members who file with the court.
If parents have joint legal custody, does every decision need to be agreed on?
No. With joint legal custody both parents have the right to make decisions and either parent can make a decision alone. In order to avoid having problems and ending up back in court, both parents should communicate and cooperate in making decisions together.
Do grandparents have the legal right to visitation?
California law gives special consideration to requests for visitation by grandparents when their son or daughter, the child’s parent, is deceased. Grandparents wanting visitation should first make every effort to reach an agreement for visitation with the parents of the children. If they can’t reach an agreement, grandparents can ask the court either by joining an existing case between the parents of the children, or by filing an independent request for visitation in court.
Can a custody and visitation order be changed?
After a judge issues a custody/visitation order, one or both parents may want to change the order through what is called a modification to the child custody order. Usually, the judge will approve a new custody and visitation order that both parents agree to. If the parents can’t agree on a change, one parent may ask the court to approve the modification. Usually, that parent will have to ask for a court hearing and show that the proposed changes are in the best interest of the child and respect the rights of the other parent. Both parents will probably have to meet with a mediator to see if an agreement between them can be reached.
What are the types of custody orders?
Parents can share custody, known as joint custody, or one parent alone can have custody, known as sole custody. Either joint or sole custody will be assigned for both legal and physical custody.
What is physical custody?
Physical custody refers to who the children will live with, you or your former partner/spouse. Physical custody can be “joint,” which means that the children live with both parents, or it can be “sole” or “primary,” which means the children live with one parent most of the time and have visitation with the other parent.
Sometimes, a judge gives parents joint legal custody, but not joint physical custody. This means both parents have share the responsibility in making important decisions in the children’s lives, but the children live with one parent most of the time.
What are is a “time-share plan,” and what is a “parenting plan”?
Time-share plan is another term for a visitation plan, while a parenting plan can be a visitation plan, but usually also includes a custody plan that explains who has legal and physical custody.
What is in “the best interest of the child”?
Family law judges use the “best interest of the child” test to make their decisions about custody and visitation. Factors in determining what that might be include:
- The age of the child
- The health of the child
- The emotional ties between the parents and the child
- The ability of the parents to care for the child
- Any history of family violence and/or substance abuse
- The child’s ties to school, home, and his or her community
If we have joint physical custody, do our children have to spend exactly half the time with each of the parents?
No. If there is joint physical custody, usually the children spend a little more time with one parent than the other because it’s too hard to split the time exactly in half. When one parent has the child more than half of the time, then that parent is sometimes called the “primary custodial parent.”
What is the process for getting a custody and visitation order?
In most cases, parents can make their own agreements for custody and visitation. If you and the other parent agree on custody, the judge will probably approve your agreement and it will become a court order. After the judge signs your agreement, file it with the Santa Barbara County court clerk.
If you cannot agree, the judge will send you to mediation and a mediator from Sanata Barbara County Family Court Services will help you. If you still cannot agree, you and the other parent will meet with the judge, who will decide on a custody and visitation schedule.
In some cases, the judge may appoint an evaluator to do a custody evaluation and recommend a parenting plan. A parent can also ask for an evaluation, but the request may not be granted. Parents may have to pay for an evaluation. Rarely, the judge may appoint lawyers for children in custody cases to represent the best interests of the child. The judge will also decide who will pay for the child’s lawyer’s fees.