~ Paternity, Child Custody and Visitation ~
Understanding Paternity
When unmarried parties have children from their relationship, the Court is often asked to legally recognize and determine the rights of the parties to child custody, visitation and support. Often this is needed when the relationship ends badly and one parent is using the child as a weapon to hurt the other parent. Ultimately, the matter will come before the Court, where a court order will be made deciding the relevant issues.
Child Custody
Child Custody becomes an issue when parents split and decide to no longer live together. This can occur during a divorce or simply when unmarried parents end their relationship. In these cases, the Court will make an order deciding which parent should have Physical Custody and Legal Custody of the minor children.
Physical Custody is a status typically conferred on one of the parents. Having primary physical custody means that the children will "primarily" live with that parent, but will usually have “visitation” with the other parent, normally including overnight visitation. "Joint" physical custody means that both parents will have significant periods of visitation & custody, often approximating 50-50 custody.
Legal Custody is a determination made regarding the paternity of the parents and simply means that the child is "your" child and that you get to share in some or all of the decisions that affect the child's welfare, health and education. If you have "legal" custody of your child, you would typically be entitled to make decisions involving where the child goes to school, what doctor or dentist they might see, have access to school and medical records and things like that. "Joint" legal custody means that both parents will share in that responsibility.
How is Custody Awarded?
According to the Legislature of the State of California, custody must be awarded according to the best interests of the child. It is, however, the public policy in California that children have frequent contact with both parents after a separation or divorce, so that the child can maintain the best possible relationship with both parents, for the child's own emotional health and well being. It is also public policy that the Court encourage both parents to maintain a good relationship with their children and to share in the rights and responsibilities of raising their children, except in those circumstances where continued contact with a parent is not in the best interests of the child because of physical, emotional or substance abuse by the parent.
There is no custody preference established in California law regarding contested proceedings. However, it is the public policy of the state to ensure that each child will remain free from child abuse and domestic violence and that those considerations be a primary concern in determining who the child will live with and what visitation, if any, a parent will receive.
How does the Court determine the child's best interests?
California law sets forth a number of "factors" that the Court must consider when making decisions involving child custody and visitation. These factors are set forth in the California Family Code. The Court cannot, however, make custody determinations based upon certain factors, such as race, gender or sexual preference (except in certain, unique circumstances, where a specific detriment to the child has been shown). Before making any decisions, the Court will usually "order" that both parents attend and participate in a "mediation" session, where the mediator (usually someone with a Master's degree in some counseling discipline) will talk to both parents and try and reach an agreement as to some mutually agreeable parenting plan. Also, in heavily contested matters, the Court may even appoint an attorney (called Minor's Counsel) to specifically represent the child, so that the child's wishes can be heard and considered by the Court. In some cases, the Court may also order that the parties be evaluated by a Psychologist under the provisions of California Evidence Code section 730.
What is Child Custody Mediation?
On a certain date, both parents will be asked to come to Court to meet with a "trained" therapist, who will try and help the parents reach an agreement about who the children will live with and what visitation the other parent will have. Usually, both parents will speak with the Mediator at the same time, however, in cases involving Domestic Violence, it is possible to ask to meet with the Mediator separately. It is also possible, in some cases to appear at the mediation appointment by telephone. In some counties, such as Orange and Los Angeles County, what happens in mediation remains confidential and if the parents do not reach an agreement, then the Mediator can not make a recommendation to the Court. Other counties, such as Riverside, San Bernardino and Ventura are "recommending counties," which means if the parties do not reach an agreement, the Mediator will make a custody recommendation to the Court, which is frequently adopted by the Court, in some fashion, in its ruling.
When can the child decide who they want to live with?
The answer is that it depends. Technically, a child can not definitely decide who that want to live with until their 18th birthday. Before that, the Court may consider their preference, depending on the child's age and maturity. It all depends on the child. California law says that the Court must give "serious" consideration to a teenager, however, previously decided cases have found the preference of younger child persuasive and the preferences of older teenagers unpersuasive because their preferences were not supported by mature reasoning.
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We offer our clients award winning services in the areas of Divorce, Child Custody, Child Support, Spousal Support and Modification of Existing Orders. If you are looking for a divorce lawyer, we understand family law and Don Werno, Esquire has been a divorce attorney and family law attorney for well over a decade. We are more than happy to provide you with divorce advice and to explain the complex family laws that exist in California. We are more than divorce lawyers, we are family law lawyers that care and can help.
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