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Custody is an in depth subject with plenty of nuance. It can be complicated to know where to begin. If you’re in the middle of a dispute over child custody or you’re simply wondering how to navigate this with your ex partner, these questions will get you started. 

1. What is the definition of child custody and the difference between sole and shared custody?

Child custody regards the legal relationship between a parent or guardian and a child. There are two types of custody – physical custody(responsibility to house and take care of the child) and legal custody(the right to make decisions regarding the child). 

Shared custody, also known as joint custody, is where both parents have the right to care for and make decisions regarding the kids. If there are differences between the two parents that cannot be resolved on certain issues of raising their kids, one parent or an appointed social worker must have the final word or power of decision. 

Sole custody means one parent has full authority over custody of a child. They make the final decisions on how to raise and care for the child. The other parent has a right to voice their opinion but the parent with sole custody decides the final result. 

2. What is the difference between arbitration and mediation in a Child Custody matter?

Arbitration and mediation share many similarities. They both involve a neutral third party such as an impartial judge or counselor or lawyer.

In arbitration, the impartial third party sits down with the two parties in a custody case. Both parties submit evidence and documents to the arbitrator to prove their case. The arbitrator will then make a legally binding decision based on what has been submitted. While this decision can be appealed, it is very difficult. You must prove the third party was non neutral.

Mediation is a favored way to avoid court based litigation. A neutral third party will guide the two parties towards settlement of issues in an amicable fashion. This is different from arbitration as any decisions reached are non binding.

Lonich Patton Ehrlich Policastri helps people in San Jose and Santa Clara avoid litigation through arbitration and mediation. If you need help with custody, contact them for a free 30 minute consultation.

3. In the state of California, is one parent more likely to be granted sole custody than the other?

While, in the past, it was common for mothers to receive custody over fathers, things have changed. In areas such as San Jose and Santa Clara, CA, both parents are considered equally in custody cases. Barring any drug problems or domestic violence and abuse, sole custody could be awarded to either party based on the best interest of the child. The rare exception is if a child is particularly young and would best be served living with one party.

4. In the State of California, how is child custody determined?

In California, custody is not biased towards the sex of a parent. Custody is determined based on the standards of the best interest of the child. This includes the health and safety of kids and ideally a continuing relationship with both parents.

Courts tend to favor the parent who is able to put personal issues in the relationship aside. This means they are able to maintain amicable contact with their ex for the sake of the child. 

Gender, race, religion, sexual orientation, handicap or financial status does not impact the decision of custody. The law in California tries to make the process as fair and equal as possible.

5. How does child custody differ for married parents versus unmarried parents?

Regardless of whether a child is born out of wedlock, child custody decisions are all made on the same principle – the best interest of the child.  However, there is an important distinction in child custody cases for married versus unmarried parents.  

In cases in which a child is born out of wedlock, the mother of the child is considered the custodial parent, meaning the parent who has sole physical and legal custody.  The father of a child born out of wedlock has no legal custody rights until paternity has been established or a Court Order has been established regarding custody and visitation. 

In cases in which the parents of a child are married, both parents are considered legal guardians and custodial parents, unless otherwise stated by the Court. Although it is an extra step, once paternity has been established, the standard for custody determination for unmarried parents and married parents is the same.

6. What does the term “best interest of the child” mean and how do you prove what the best interest of the child is?

“Best interest of the child” is the legal standard by which most courts base decisions in child custody cases.  This means that custody and visitation decisions and discussions are made by a judge based on what will best support and promote the development, well-being, and happiness of the child.   There are many factors that are considered when determining the best interest of the child such as child’s age and preference, consistency, mental and physical well-being of parents, safety and parental ability.  These factors may vary from state to state.

7. What is the difference between legal custody versus physical custody?

Legal custody is the right a parent has to make decisions about the child’s well-being and how they are raised. This includes decisions about schooling and medical care. It also determines if a parent has the right to get information about the child.

Physical custody is the right and responsibility to physically house and care for a party’s kids. This includes how much time a child will spend with each parent. 

8. What is child support and how does it work with child custody?

Child support is financial installments paid monthly to one parent or guardian of a child in order to help with the expenses of raising and caring for said child.

Whether or not a parent owes child support is determined by a few factors. One of these factors is timeshare percentage. This is the amount of time per year one parent spends with their child. The court also considers the gross monthly income of both parents. Child support can include add ons such as medical funds that health insurance doesn’t pay for. The amount of child support you pay can be modified over time. 

9. Modifications of Custody Agreements: what if there is a change in the agreement or if a move away order has been presented?

Modifications are changes to a custody agreement. These are common as circumstances change over time, affecting the original agreement put in place by a judge or parenting plan. To approve a modification, one must prove a change in circumstance with facts and evidence. Some changes in circumstances include:

1. Change In Job Or Income – If a parent has a new job that pays more or less, this can affect the status of the custody agreement and the amount of child support a parent owes. 
2. Change In Age Of Children – This can affect what’s in the best interest of the child and can impact the child’s wishes. The child’s wishes, when old enough, is considered by the court and has a significant impact.  
3. When A Parent Violates A Custody Order – If a parent violates a custody order, they can be held in contempt of court. This does not always mean a modification will be approved but can affect the outcome in certain circumstances. 
4. If A Parent Is Imprisoned – This can affect custody due to the limitations of being in prison. Being in prison can change how much child support a parent may pay, but the parent in prison will have to submit the modification to prove this change in circumstance. If they don’t, a significant amount of child support can accrue during their sentence. 
5. Drug Problems Or Abuse – If a child is proven to be in a dangerous situation since the original order was put in place, this is solid ground for a modification in the custody order. 
6. Move Away Orders – Move away orders are complicated. If a parent is considering moving, they should speak to the other parent immediately. The moving parent will have to go to court and ask permission to move. A parenting plan was set in place either through the plan the parents themselves worked out or the plan a judge set up. This plan determined what was the best interest of the child and if one parent wants to move away, it has to be evaluated if that is in the child’s best interest or if it will compromise that. 

It is not typically considered what is in the best interest of the parent if it negatively impacts the child. However, if a parent is moving for a new job opportunity – one that will lead to the advancement and improvement of the life of a child – that results in the happiness of the parent, a judge will consider approving the modification. A judge will also consider approving the modification if a parent has a new serious relationship and their new partner is moving for a job opportunity. Once and if you’ve moved, you will have to request the original court transfer jurisdiction to the new court in your new state. The original court that had jurisdiction over your custody case will usually maintain jurisdiction. 

There are a couple recommended ways to handle custody modifications. The first option and most recommended expedites the process and allows for a more personalized experience. Reach out to Lonich Patton Ehrlich Policastri for a free 30 minute consultation for help with modifications to custody agreements.

Another option is to have the DCSS do the mod for you. This is a very drawn out process however and isn’t for everyone. 

10. Can an attorney help avoid needless litigation or other concerns during the Child Custody process?

Choosing the right family law attorney can help you avoid litigation. No one wants a difficult custody battle. It isn’t good for you or your child. By choosing an experienced, compassionate lawyer, you have a better chance of mediation or arbitration. Your attorney should be able to tell you what the likely outcome of the case will be and what you should expect based on your situation. You could also lean on a family counselor or neutral third party such as a lawyer to help you develop a parenting plan both parties agree upon. This is one way to avoid litigation and make the process of custody as smooth as possible.

If two parents create a parenting plan out of court, it is advised to have the document reviewed by a lawyer to make sure it is in the best interest of the child before signing it. If you’ve created a parenting plan out of court, reach out to the experienced attorneys at Lonich Patton Ehrlich Policastri for help reviewing the document. The court will then review the plan. Parenting plans are temporary until they are finalized by a court. A judge will consider any allegations or threats to the child’s safety before approving the plan. Once approved, the plan becomes a court order and cannot be violated.