When a divorce or separation involves children, the child's needs become utmost priority. Divorce is especially difficult for children, and it is important to protect the best interests of your children, as well as protecting your rights as a parent. We can help you find solutions to your child custody concerns, including:
- Physical Custody
- Legal Custody
There are two types of child custody, legal and physical custody. When considering child custody laws, it is vital that one does not base their understanding of child custody on what they have heard from friends or family. Familiarizing yourself with the legal terminology of the different types of child custody will help you make sound decisions when it comes to your child’s future.
Physical custody is who the child will physically live with. The parent who has physical custody of the child is the one who legally has the right to have the child in their home. The parent who has physical custody of their child is known as the “custodial” parent. The other parent is considered the “non-custodial” parent, and typically has visitation rights.
When both parents share a significant amount of time with the child, this is “joint physical custody”. These times may be equally shared 50/50 or close to equally divided. A common example may be that one parent has the child during school nights, while the other parent has the child on the weekends.
“Sole physical custody” refers to which parent is responsible for the day-to-day care for the child, subject only to the other parent’s visitation rights.
Legal custody refers to who is legally responsible for the decision making for the child. This includes what kind of school they go to, what types of healthcare they receive (except for in emergency situations), and what religion they may or may not practice.
Under California law, both parents usually share “joint legal custody” over the child. However, even if both parents share joint legal custody, that does not mean they automatically will share joint physical custody.
Sometimes, a parent may be awarded “sole legal custody” if parents are unable to make decisions together, one parent is deemed unfit to make those decisions, one parent is incapable of making decisions for the child’s well-being, or it is in the best interest of the child for one parent to make all the legal decisions.
At Azemika & Azemika Law, our attorneys can help you understand the laws and procedures in navigating child custody issues in California. We actively engage in settlement in negotiations, or litigating your child custody case.
You would file for child custody in the state the child’s residence. Generally, courts may decide on child custody if one of the following is true: (1) the child has lived in the “home” state for the last 6 months, or was living in the state but is not there because a parent took the child or kept him or her out of the state. (2) The child has significant connections with people in the state, such as teachers, doctors, and grandparents. It can be proven that the child’s care, protection, training, and personal relationships are based there. (3) The child is in the state and either has been abandoned or is in danger of being abused or neglected if sent back to the other state. Once the first state makes a decision, another state is not allowed to make another “initial” custody decision or modify the order.
In custody cases, the court does not let the child choose whom he or she lives with. The court may take the child’s wishes into consideration if the child is “of sufficient age and capacity to reason.” If willing, children aged 14 and older may express their opinions concerning child custody, but the court is not required to follow their wishes.
A parent with sole legal physical custody of the children has the right to move with the children, unless the other parent can prove that the move will harm the child. In cases of joint physical custody, if one parent wants to relocate and the other does not choose this, it is up to the parent to prove to the court that the move is in the best interest of the children. Relocation is a complicated matter. By speaking with our experienced child custody attorneys, we can help you sort out this matter as quickly as possible.
If one parent is found to have committed domestic violence or child abuse, that parent must overcome the presumption that it is not in the child’s best interests to have joint custody with the other parent. Speaking to our experienced attorneys, we can outline and discuss your options to protect yourself and your children during this time.
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