How Is a Child’s Custody Determined?

Posted in Best Interest of the Child,Child Custody,Child Support,Co-Parenting on November 5, 2024

Whether you and your spouse are navigating a divorce or simply no longer co-parenting as well as you used to, you may be facing a challenging child custody process. The idea of having to split time with your children may feel devastating. You may wonder, “How is child custody determined?” and “How often will I be able to see my kids?”

If you and your spouse can reach a custody agreement on your own, you will have full control over the final custody determination. Otherwise, a judge will decide for you based on a range of factors. Learn more from an experienced family law attorney in Del Mar.

Understanding California’s Child Custody Laws

California recognizes a few different types of custody:

• Legal custody: A parent’s ability to make big decisions on behalf of the child about topics like education, religious upbringing, and medical treatment
• Physical custody: Where the child lives and spends their time, including which parent is responsible for routine daily care

Parents can share custody of one or both types, known as “joint custody.” Or, one parent can have “sole custody.” For example, maybe one parent maintains sole physical custody, yet both parents share legal custody.

Judges prefer to award joint custody whenever possible because there is value in promoting the participation of each parent in a child’s life. Typically, a judge would only allow sole custody if it was in the best interest of the child not to permit one parent to make decisions for or physically take care of them.

For parents with joint legal custody, judges must define the distinct circumstances under which both parents must consent to a decision. Outside of these scenarios, one parent can decide without involving the other.

Factors a Judge Considers When Determining Child Custody

If you and the child’s other parent are both interested in and capable of providing physical custody and making sound decisions on the child’s behalf, a judge will likely award you joint physical and legal custody. However, joint physical custody can look different depending on the situation.

Unless the parents live geographically close to each other and within the same school district, the child will likely not be able to spend the exact same amount of time with both parents. As such, judges must make custody determinations even in joint custody cases.

A judge would consider all the following as part of determining child custody:

• The age and health of the child: These factors can inform the types of decisions a parent would need to make as part of legal custody and the burden it would place on the child to switch between two households.
• The child’s ties to their current home and community: If one parent is moving to a different city or school district, the judge may be more apt to give the other parent custody during the school year so that the child can maintain stability in their school and community.
• The bond between the parents and the child: While both parents have the right to spend equal time with their child, if all other circumstances are the same, the judge will consider the parent-child relationship and the child’s emotional bond to one parent when determining custody.
• Each parent’s ability to take care of the child: A judge will evaluate both parents’ income, health, and parenting styles in the name of creating a custody plan that prioritizes the child’s best interests.
• Any history of family violence: Judges take a history of violence seriously when assigning custody. If one parent has a history of domestic violence or child abuse, this will weigh heavily on the judge’s decision.
• Any ongoing substance abuse by either parent: Issues with substance abuse could indicate that a parent is not fit to take care of the child.

Child Custody vs. Parenting Time: What’s the Difference?

When considering “How is child custody determined?” you also need to take parenting time into account. Many divorcing parents confuse the concepts of child custody and parenting time.

Child custody refers to a parent’s legal and physical rights to care for the child. Parenting time, also known as visitation, is the plan for how both parents will spend time with their children. Both are important elements of a parenting plan.

The judge may award you and the child’s other parent joint physical custody, but your parenting time may not be exactly equal. For example, the child may spend weekdays with one parent and weekends with the other parent.

Parenting time also affects sole custody. Even if one parent has sole physical custody of the child, the non-custodial parent may still have the right to a specified amount of parenting time each month to visit with the child.

A judge can grant a few different types of parenting time orders within the parenting plan:

• With a schedule: The judge would approve a set schedule for the times your child will be with each parent. It may include holidays, vacations, and school schedules.
• Reasonable: If a judge grants a “reasonable” parenting time order, the parents have the flexibility to work out the plan among themselves.
• Supervised: When a judge has concerns about a child’s safety or well-being with one parent, they may grant supervised visitation that requires the visit to be overseen by the other parent or another adult.
• No visitation: A judge may grant no visitation when visiting with a parent would put the child in danger of physical or emotional harm.

What Is the Custody Modification Process in California?

When a judge creates a custody order, it is not necessarily set in stone forever. The judge can modify it as your family’s circumstances change.

Typically, one parent seeks a modification based on the other parent’s behavior. They may wish to change the custody agreement for any of the following reasons:

• One parent exhibits parental cooperation issues.
• One parent is moving to a different city or state.
• One parent’s work schedule has changed.
• One parent is unfit to take care of the child any longer.
• The child wishes to spend the majority of their time with one parent.
• A parent is seeking joint custody within a previous sole custody agreement.

In California, the parent would need to show a significant change in circumstances to warrant a modification.

The court would evaluate the requested change to determine whether it serves the child’s best interest. If so, a judge can grant the modification.

If you need to modify your child custody agreement, contact your attorney, who can guide you through the process.

Protect Your Rights to Child Custody With Ratzer | Dobis

Understanding “How is child custody determined?” can help you gain peace of mind about your right to custody and parenting time. If you’re navigating a complicated child custody conflict, you need an experienced legal team on your side to help you protect your rights.

At Ratzer | Dobis, we fully understand California’s custody laws and processes. We are Family Law Specialists, a designation given by the State Board of California to less than 1% of California’s attorneys.

Our experienced attorneys can guide you through the child custody process. Contact us today at (858) 793-7700 for your free consultation.