Often, the most contentious, emotionally draining part of a divorce can be determining child custody. So much so, that the matter must sometimes be resolved as part of another trial separate from the divorce. Generally speaking, both parents will have a legal right to the child, but may not agree on how those rights and responsibilities should be allocated. In these cases, there is usually a need for litigation, wherein the court must decide the custody arrangement. Unmarried couples may also find themselves involved in custody battles. These can be somewhat more complicated and, generally, will require a paternity test before they can proceed.
Custody will either be awarded as “sole custody” or “joint custody.” In the case of the former, a single parent holds all legal and physical rights and responsibilities for the child(ren). “Joint custody,” on the other hand, means that both parents share these rights and responsibilities. Joint custody itself comes in two forms: “joint physical custody” and “joint legal custody.” With joint legal custody, both parents are involved in any and all important decisions regarding the child(ren), including schooling and medical care. Joint physical custody makes both parents involved in the child’s everyday life, being physically present on a frequent basis. That said, both parents may not spend equal time with the child (for instance, the child may spend weekends and holidays with the father and weekdays with the mother). Generally speaking, such arrangements work best when both parents live a short distance from each other.
Normally, the best option is for parents to come to a civil agreement on the custody arrangement with the help of a lawyer. In doing so, they’ll write up a written plan that will become an enforceable court order. Of course, this level of cooperation isn’t always possible. Should they be unable to agree, then the court will likely send them to mediation in the interest of helping them come to an agreement. Should the parents still disagree on the matter, a judge will have to settle the matter and a trial may ensue. Normally, the court prefers shared custody that will keep both parents involved.
While the court will be considering numerous factors when making decisions on a child custody case, their primary interest and the one all these factors will boil down to, as stated and required by California law, will be the best interest of the child(ren). The desires, wants, and needs of the parents only matter insomuch as they may affect the best interest of the child(ren). Factors that will influence the decision may include:
- The child’s current and past living situation, called the “Status Quo.”
- The child’s wishes, if they’re old enough
- Changes to the child’s home and school life
- The time the child will spend with each parent
- How far the parents live from each other
- Each parent’s “parenting style”
- Each parent’s “fitness” to serve as a parent
- The distance between the child, their siblings, their parents, and other key figures in their life
- Activities the parents are involved in with the children
- Negative influences such as drug abuse, violent behavior, anger management issues, psychological health, neglect, et cetera.
If, after a time, an agreed upon, court ordered custody arrangement becomes distasteful to one or both parents, they can attempt to have it changed, going through a process much like the one already outlined above. Should the parents be in agreement, it may be quite easy; in fact, the judge may not even require a hearing. However, if the custody arrangement has been in place for some time and the children seem reasonably well-cared for, it may be very difficult to change it.
As stated earlier, determining child custody is often the most contentious part of a divorce. It’s complicated, emotionally draining, and has a habit in bringing out the worst of both parents—sometimes showing a vicious side of them you never knew. Parents will sometimes attempt to use a custody arrangement solely to hurt each other. They may also falsely accuse the other parent of neglect, abuse, drug addiction, or other nefarious things in the interest of swaying the case to their side. Even when both parties are in agreement, these proceedings can be difficult to manage, and lack of proper assistance and legal representation can quickly make a once-amicable custody dispute turn sour. Because of this, any time a child is involved in a divorce, it is in your best interest to secure a highly skilled lawyer as quickly as possible and have them involved from the beginning of the process.
At the Law Offices of Glenn R. Wilson (FamilyLawFresno.com) we are experienced in handling child custody matters and can provide aggressive legal assistance in your child custody dispute.
By Connor Douglas Johnson