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Child Custody

TREVINO LAW, INC.

Child Custody in California is based on the bests interests of the minor child

California Family Code section 3011 requires the divorce judge to analyze the best interests of the minor children. The family law court looks at several factors to determine the best interests of the minor children.

  • the children’s health, safety, and welfare;

  • history of domestic violence;

  • frequent contact with both parents; and

  • the habitual or continued use of controlled substances by either parent.

Many people believe that the best interest approach is based on which parent is the better person. However, there is a presumption that it is in the best interest of the minor children to h ave both parents involved int he minor children’s lives.

In analyzing the best interest of the minor children, the court determines whether the children will be cared for in a safe environment and remain healthy in both parents’ homes. If the needs of the children—such as regular health care, completed home work, and school attendance—will be met at both parents’ home, the court is more likely to give both parents an equal timeshare. However, if one of the parents cannot meet those needs, then the children are more suitable in the other parent’s home, and the court will order visitation accordingly.

Frequently Asked Custody Questions

What is the difference between legal and physical custody?

Legal custody allows the parents to make legal decisions for the minor child. those decisions involved religious instruction, schooling, medical care, therapy, etc. Physical custody involves the parenting time with the minor child.

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How do I change visitation after a judgment has been entered?

If you have a final order for visitation and the other parent will not agree to a request to change visitation, you must file a motion to modify visitation in Orange County. In order to change custody, you must prove to a judge that there is a change in circumstances to justify a change in custody.

What is physical custody?

Physical custody is the physical time that each parents spends with the minor child. If an Orange County Court orders joint physical custody, it does not mean that the parents have equal custody. It merely means that both parents have significant visitation. If one parent has little or no visitation with the minor child, then the other parent will have sole physical custody. If a parent has sole physical custody, he or she may move the child away from the home state. However, even in those circumstances, the other parent must receive adequate notice in order to challenge the move-away in court.

Can I get sole physical custody?

The courts rarely grant sole physical custody. However, if one parent is unable to adequately care for the children, the other parent may get sole physical custody. In most situations, the courts will order joint physical custody especially if both parents have significant parenting time with the children. Joint physical custody allows both parents to have significant time with the children even if it is not equal time.

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My child does not want to visit with my ex, how can I change or end visitation?

There are two times where a parent can stop visitation with the other parent. The first is when the parent can prove to a judge that the other parent is not in the child’s best interest. The second is when the minor child is mature enough to make a decision about visitation. In both situations, an order should be issued before visitation ends.

How can I subpoena my spouse’s medical records?

Doctor’s records and therapist’s records are protected by the doctor-patient privilege. If the parent holding the privilege does not waive the doctor-patient privilege of if the parent has not put his or her mental status “at issue,” the court will abide by the wishes of the parent who holds the privilege. The privilege can only be waived by the party holding the privilege. If it is not waived, then the other parent cannot get access to the records.

What decisions can I make if I have joint legal custody?

California Family Code section 3003 states that parents who have been awarded joint legal custody have the “right and the responsibility to make the decisions relating to the health, education, and welfare” of the minor children. The parties must obtain joint consent for any orders that require both parents to consent.

California Family Code section 3083 requires the court to specify which decisions the parents must make jointly and the consequence for the failure to make those decisions jointly If the court does not do so, then either party may act alone.

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Can I move away from Orange County with my child?

Before a parent moves away, it is important to give the other parent advance notice in writing. The notice should give the parent who is not moving enough time to file a motion to request that custody or visitation be modified.

If there are custody orders in place, the moving party must take care to avoid violating any custody orders when moving unless the party obtains a new custody order.

Even though one party may be granted permission to move out of state with the minor children, it is possible that under the UCCJEA, California will continue to have the authority to make custody orders.

If one party moves out of California, and California continues to have jurisdiction, modifications in custody will continue to be heard in California unless the court relinquishes jurisdiction over custody to a new state.

Changing California Jurisdiction

Once California has established jurisdiction to enter an order for child custody, jurisdiction can only be transferred to a different state by filing a motion in the new state and California relinquishing jurisdiction.