Category: <span>Child Custody</span>

Who Gets Custody if My Spouse or I am…

August 5, 2021
by Briana White

Regardless of what type of divorce you choose, there’s no getting around the fact that child custody is a brutal process fraught with fears of denied rights and less time.

Worries like these can be particularly strong for parents serving in the armed forces. However, whether you are the spouse at home, or the one serving abroad, you are not alone if you find yourself wondering, “Who gets custody if my spouse or I am in the military?”

Fortunately, both federal and California state legislatures have taken measures to protect the rights of service women and men, who are out fighting for our country whilst simultaneously dealing with divorce.

Here’s what you need to know about military custody in California, and how the Maples Family Law team can help safeguard your rights while you’re on active duty.

Will Military Service Affect My Custody Battle?

The short and emphatic answer is: absolutely not. Both state and federal laws prohibit judges from making custody decisions based solely on military obligations.

The longer—and somewhat convoluted—answer, is that temporary concessions might still have to be made, in order to ensure that a child’s care doesn’t lapse or suffer, while a parent is away on active duty. Because the reality is: you can’t actually be home to care for your child and be on active duty at the same time. Which means that sometimes military service can inadvertently influence a judge’s custody determination.

That being said, California courts have long maintained that a child’s best interests are served when allowed to have a loving, healthy relationship with both parents whenever possible. And to that end, both federal and state governments have provided a host of protections to ensure that the rights of military parents are not suspended, revoked, or denied based on their service to our nation.

Federal Military Custody Protections

The last thing our government wants is for parents to feel like they’re being punished for devoting time to the armed forces. (We’re thinking that wouldn’t be very helpful for recruiting officers). Not only would it be unjust to punish someone for their service, but distracted soldiers aren’t the most productive ones, either.

This two-fold concern is largely what motivated the adoption of the Servicemembers Civil Relief Act (SCRA), which, among other things, can be used to temporarily suspend divorce and custody hearings for service women and men, while on active duty.

This federal act, adopted in 2003, applies to all:

Active duty members of the regular forces (army, air force, navy, marine corps, and space corps);
Members of the National Guard (when in active service, under federal orders);
Members of the reserve (when called to serve on active duty); and,
Members of the Coast Guard (when serving on active duty, in support of the armed forces).

SCRA is specifically designed to relieve these individuals from the stress of civil litigation back home, so that they more fully direct their attention to their posts abroad.

Here are a few of those SCRA protections relating to parental rights.

Stay of Proceedings

The right to stay (or “hold off”) certain legal proceedings is an important one for the SCRA. This safeguard applies to individuals who cannot attend a hearing (or other legal procedure) in person, because of a military obligation.

Individuals who invoke this particular protection should be prepared to provide proof of service. They should also keep in mind that, when granted, this hold won’t be infinite. Once their service is complete, they will be required to attend the proceedings.

Stay of Execution (Enforcement) of a Judgment

Similar to a stay of proceedings, a stay of enforcement can be used to stop a judge from carrying out the terms of an order. However, once again, you must be able to show that military service was directly responsible for keeping you from upholding your obligations under whatever order you violated.

Expedited Modification of Support

This protection gives you the right to request an expedited hearing for a modification of child support. Typically, this protection is utilized by service personnel who are being deployed out of state, so that they can get their modification reviewed and revised before departure.

Interest Reduction

Certain parents might also qualify for a 6% reduction in interest for past due child support payments, for times when they were on active duty.

A non-custodial parent who wishes to file for this relief must show that his or her inability to pay the full amount of support was a direct result of military assignment. (Usually because they were making more money before deployment.)

Military Qualified Debt Reduction Program

The SCRA also allows some National Guard parents to qualify for government debt reduction (such as federally backed student loans). This protection is reserved specifically for those whose income decreased, as a result of deployment.

California Military Custody Protections

In addition to full compliance with the SCRA, California legislatures have also adopted their own, state-level safeguards for

military parents. Some of these protections include:

Prohibiting custody modifications in certain situations;
Keeping amendments to custody temporary;
Suspending cases while the military parent is absent on active duty; and,
Honoring official visitation requests issued by the military parent.

Prohibiting Custody Modifications

According to the California family code, compliance with a military assignment cannot be used to justify a modification argument. (For example, if your ex wanted to use your absence as a way to justify a geographic relocation, or as an argument in favor of full custody, the court would not allow it).

That being said, judges are still permitted to consider other, non-military arguments in favor of modification.

Temporary Amendments

If the disruption of your responsibilities is drastic enough to completely derail your parenting plan—such as would be the case if a custodial parent received an out of state assignment—then custody may be amended to give the secondary parent custodial power while you were away.

However, these orders would be considered temporary, and custody would revert back to the original terms, once the primary parent came home again.

Case Suspension

If you are on active duty, custody and other family law cases can be suspended until you return.

In a similar vein, any default judgments that might have been entered against can be overturned—and the case reopened—if you can show the judgment was entered against you while you were on active duty.

Visitation Requests

Finally, a military parent in California can sometimes facilitate visitation rights for an outside adult (such as a step-parent, grandparent, or other family members), if:

A preexisting relationship already exists;
The visitation will help the child cope while their parent is away; and,
The visitation doesn’t interfere with the remaining parent’s rights.

This outside visitation cannot be requested by the outside party, however. It can only be initiated by the military parent.

Military Custody Attorneys in California

Regardless of whether you are the spouse at home, or the one serving abroad, when it comes to military custody, it’s important to hire the right family law attorney. Someone who knows—not just California family law—but is experienced in understanding how these laws are affected and altered by military obligations.

If you have more questions about military custody, and how it might play out in your divorce, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help ensure the best outcome for your child.

Child Custody

FAQs About Same Sex Custody

July 29, 2021July 29, 2021
by Briana White

Same sex marriage might be legal across the United States, but LGBT couples still face unique challenges in divorce and custody, where—even when applied the same—family laws often contain inherent discriminations that exclude same sex couples.

This is particularly true in child custody, where the presumption of parenthood falls short of the mark for same sex parents, prompting a lot of head-scratching questions about how same sex custody actually works in California.

Luckily, we’ve got you covered.

Here are answers to some of the most commonly asked questions about same sex custody in California, and how Maples Family Law can help with these important matters.

How Does California Handle Same Sex Custody?

During a same sex custody dispute, there are four main issues that the court will need to address, they include deciding:

Which parent(s) will have legal custody.
Which parent(s) will have physical custody.
The terms and conditions of visitation for the child’s non-custodial parent.
How much child support will be paid by the child’s non-custodial parent.

Here, your judge will assign legal and physical custody either to one parent, alone (called “sole custody”), or to both, together (in “joint custody”). This split will be made by examining a number of individualized factors, and decided according to your child’s best interest.

What Factors Does the Court Consider During Child Custody?

No two families are ever the same, which means that when it comes to child custody, no set formula can apply to every situation.

Instead, the court will make custody decisions by weighing a number of different factors against potential outcomes, such as:

The child’s relationship with both parents.
The child’s emotional and psychological needs.
The child’s physical, medical, and educational needs.
The child’s relationship with other members of the immediate households.
Each parent’s ability to care for their child.
Any history of domestic abuse, violence, or neglect.
Which parent seems most likely to encourage a relationship between their child and their child’s other parent.

At the end of the day, your judge will choose—not necessarily the outcome you want—but the one they think will best suit your child’s long-term health and happiness.

Are the Rights of Same Sex Parents Different from Hetero Parents?

No. In California, it does not matter whether parents identify as hetero, or LGBT. Parental rights are the same, regardless of sexual orientation. The same is true for child custody laws, which are applied the same, regardless of the parental matchup.

If the Laws Are the Same, Then Why Do Same Sex Couples Have More Problems During Custody Disputes?

If both parents are legally registered parents, then (theoretically) their custody dispute shouldn’t have any extra problems. The problems—when they arise—occur when only one parent is legally recognized.

Many family laws are inherently prejudiced against same sex relationships, meaning that—even when they’re applied “equally”—the results affect LGBT parents differently.

This is especially evident with the presumption of parenthood, which states that only a child’s biological parents can claim rights at the child’s birth. This inevitably excludes one parent in a same sex relationship, requiring them to adopt before they’re granted parental rights.

California legislatures are working hard to eliminate inherent prejudices such as these.

What is California’s 3rd Parent Law?

The “3rd parent law” refers to a 2013 change to California’s family code, which upped the number of legal parents allowed on a child’s birth certificate from two to three.

Yes, you read that right. In California, three parents can be listed on any of the three (gender-neutral) parent lines.

This radical new change allows both partners in a same sex marriage to assume parental rights over their child, without the need for adoption. At the same time, it also safeguards the rights of the child’s other biological parent.

What About Unmarried, Same Sex Partners?

A couple does not have to be married to take advantage of California’s 3rd parent law. Registered domestic partners, as well as long-term (unregistered) partners can also claim rights under these rules.

However, the 3rd parent law isn’t a failsafe catchall. For example, it doesn’t specify what should happen when a couple’s relationship begins after the birth (or adoption) of a child, and the non-biological parent never formally adopted.

There is no easy answer for same sex couples in these situations, however, one solution might be to argue for rights as a de facto parent.

What is a De Facto Parent?

A de facto parent is someone who has assumed the role of a parent long enough to have formed a strong, parent/child bond with a child that is not legally theirs.

To determine whether this relationship exists, the court will analyze the situation, to see if:

The non-parent ever lived in the same house as the child.
The child’s legal parent was aware of and/or encouraged a parent/child bond.
The non-parent took responsibility for the child’s daily care, social development, education, financial needs, and health.
The relationship lasted long enough for a parent/child bond to form with the non-parent adult.

Needless to say, de facto parents have an uphill battle, and you won’t qualify just because you were in a relationship with someone who happened to have a child.

California courts will only grant this status when doing so serves a child’s best interest—or, in other words, when not granting these rights would essentially cause the same, psychological harm as it would to keep a child away from their legal parent.

How Can I Avoid Same Sex Custody Problems?

Most same sex custody problems happen because one of the parents is not legally recognized at the time of divorce. Hence, the single biggest thing couples can do to avoid these issues is to make sure both are legally recognized as soon as possible—even if that means formal adoption.

If that ship has already sailed, try to avoid waging a parentage battle in open court, where you could easily end up with a prejudicial judge. Instead, we suggest mediation (which is almost always better, anyway).

At the very least, always try to remember to put your child’s emotions and needs before your own.

Same Sex Custody Attorneys in California

If you have more questions about same sex custody in California, and how these laws might apply to your situation, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help ensure your parental rights are protected.

Child Custody

Same Sex Custody in California

July 29, 2021
by Briana White

In 2015, the Supreme Court of the United States made same sex marriage legal, meaning that LGTBQ couples now enjoy the same, basic rights to marry and divorce as hetero couples—no matter which state they live in.

Theoretically, these considerations also apply to parental rights, too, including custody. (After all, children are a pretty big part of family relationships.) However, same sex custody isn’t always as cut and dry, and same sex couples often face unique challenges in custody disputes.

Here’s what you need to know about same sex custody in California, and how the Maples Family Law team can help you resolve these important matters during a divorce.

Same Sex Custody: The Basics

Child custody is a legal term that encompasses the wide range of rights and responsibilities that a parent has, in relation to their child. Specifically, it refers to a parent’s right to make decisions for that child, and to have contact with them, while young.

In a custody dispute, a judge will grant legal and physical custody to parents either together (as “joint custodians”), or to one parent, alone (called “sole custody”). Based on these decisions, visitation and child support obligations will then be assigned, accordingly.

Theoretically, this child custody process should apply to parents the same, regardless of sexual orientation. The reality is, though, that many states fall short in recognizing that—even when applied “equally”—child custody laws are inherently discriminatory against same sex parents. (Largely due to the fact that, in a same sex partnership, only one parent can be a child’s biological parent.)

California legislatures have attempted to remedy these inherent discriminations, by creating child custody laws that are gender neutral and inclusive to all parents, regardless of sexual orientation.

That being said, same sex parents are still more likely to face challenges during a custody dispute—the range and extent of such problems generally revolving around the legal status of both parents, at the time of divorce.

Same Sex Child Custody Scenarios

The legal status of a child’s parents will be the best indicator of how easy it will be to settle custody.

If both parents are legally registered, then the question of who has a claim to rights becomes relatively straightforward. If one parent isn’t legally recognized, however, things get more complicated.

In a same sex partnership, this legal status generally presents as one of three main scenarios:

The child is adopted by both parents, and both are registered as legal guardians.
The child is born into a marriage, registered partnership, or civil union.
Same sex partners are unmarried, and only one of them is the child’s legal parent.

Here’s a closer look at each of these scenarios.

1. Child is Adopted by Both Parents

In the first scenario, child custody is a relatively simple matter (well, as simple as custody ever gets, that is). Once complete, adoption confers the same rights and responsibilities to adopted parents as biological ones—regardless of gender.

Hence, same sex partners who have both legally adopted their child will each have an undisputed right to claim all the powers and responsibilities associated with parenthood, upon divorce.

2. Child is Born into Marriage

In California, it doesn’t matter if you are in a same sex partnership, or a hetero one, if a child is born into your union, you are treated as the child’s legal parents, under the presumption of parenthood.

California is one of very few states that have granted same sex parents this presumption. By allowing it, however, they’ve taken a huge step in helping to eliminate discrimination towards same sex parents.

We should also note that this allowance doesn’t eliminate the rights of either of a child’s biological parents, either. As of 2014, as many as three parents can now be listed on a child’s birth certificate, thereby giving all parties involved the peace of mind in knowing their parental rights are protected.

3. Unmarried, Same Sex Parents

Finally, we have unmarried, same sex parents—a situation where either the biological parent is the child’s only registered parent, or else a non-biological, adopted parent is the only legally registered parent.

Out of all our scenarios, this is the most precarious place for same sex couples to be, because here, only one half of the duo is recognized as the child’s legal parent. These are co-parents who never had a chance to assert parental rights at a child’s birth (or adoption), but who—nonetheless—played a pivotal role in the child’s upbringing and development.

To answer these questions, California courts turn to the doctrine of psychological parenting.

The Doctrine of Psychological Parenting

This doctrine recognizes that a co-parent doesn’t necessarily have to have legally adopted a child for them to have fulfilled that role in a child’s life. This principle places the best interest of the child above the need for strict, legal formalities, and—in some situations—will grant a non-biological/non-legal co-parent parental rights, without requiring a formal adoption.

In California, a parent who qualifies under the doctrine of psychological parenting is called a “de facto parent.”

De Facto Parents

Not everyone in this situation will qualify as a de facto parent (in fact, more likely than not, the cards will be stacked against you). Instead, the court will seriously evaluate a number of different things, including whether:

Whether the non-parent lived in the same house as the child.
Whether the child’s legal parent was aware of—and consented to—the formation of a parent/child bond.
Whether the non-parent took responsibility for the child’s development, care, education, and financial needs.
Whether the relationship lasted long enough for the child to form a parent/child bond with the non-parent adult.

As you can see, becoming a de facto parent isn’t a foregone conclusion, and requires more than just a romantic relationship between partners—one of whom just so happens to have a child.

Still, why would the court uphold de facto rights at all? Isn’t that kind of strange? (We’ll give you a hint: it has nothing to do with you…)

Best Interest of the Child

If you answered with, “Because it’s in the child’s best interest,” then you’d be correct.

In all cases of child custody—not just those involving de facto parents—the court’s driving motivation is to find the arrangement that will best serve a child’s long-term happiness, health, and wellbeing. And if that child has formed a bond with someone who has acted like a parent, looks like a parent, and smells like a parent, then the court figures it’d be pretty damaging to separate that child from that person, even if the relationship was never formally recognized through adoption.

That being said, LGTBQ parents in this situation still face an uphill battle—especially if paired with a judge who has strong prejudices against same sex relationships. That’s why, when dealing with same sex custody, it’s so important to hire a family law attorney you can trust.

Same Sex Custody Attorneys in California

In theory, same sex couples have the same rights to marry, divorce, and parent as their hetero counterparts. However, despite lawmakers’ best efforts, the practical execution of these laws doesn’t always pan out the way they’re meant to, which is why you need an experienced family law attorney to help fight for your rights.

If you have more questions about same sex custody in California, we want to hear from you. Call the Maples Family team at (209) 989-4425, or get in touch online, and let us help ensure the best interest of your child is met.

Child Custody

Virtual Visitation

May 18, 2021
by Briana White

As a parent, one of the most difficult aspects of divorce is suddenly having to share time with your child. This can be particularly excruciating, if you are a non-custodial parent, who no longer gets to live under the same roof as your child.

As a non-custodial parent, daily communication used to be something you didn’t think about. Nowadays, building a relationship with your child is contingent on being able to maintain a meaningful visitation schedule, which can be difficult, even in the best of circumstances. (Impossible, under the worst—thanks for that, COVID.) And this is before you even consider the unique challenges that families with international custody, traveling careers, and military obligations face.

Lucky for us, we live a time of unprecedented technology, where communication is no longer limited to in-person contact. In certain situations, these virtual tools can be incorporated into your custody agreement, to help supplement your parenting time.

What is Virtual Visitation?

In order to understand exactly what virtual visitation is, it’s important to first have at least a basic understanding of how California courts handle custody.

Custody refers to the broad range of parental rights and responsibilities that have to be divided when parents get a divorce. To this end, the court can divide custody by either giving all the power to one parent (sole custody), or making them share (joint custody). Since it’s nearly impossible to split a child’s time exactly fifty-fifty, the court will then typically make one spouse the child’s primary residence, while the other is awarded ample visitation.

Visitation, then, is essentially all that time a non-custodial parent gets to spend with their child. And for a really long time, that’s all it was: in person contact. Visitation either happened physically, or it didn’t happen at all.

Luckily, the past decades have moved us well beyond our Neanderthal ways, and when it comes to visitation, non-custodial parents are no longer quite so constrained by physical limitations. With a huge variety of technological advances at our fingertips, the parent/child relationship can be strengthened virtually, as well.

Hence, virtual visitation is defined as any parent/child contact that is facilitated through the use of technology.

Examples of Virtual Visitation

Virtual visitation’s broad definition encompasses a wide range of platforms and tools, and isn’t limited to just phone calls. Instead, parents have a wide variety of options, including:

Phone calls and text messaging;
Data plan facetime;
Webcams and online video chats;
Email and instant messaging;
Online gaming;
Private document sharing sites, such as Dropbox and Google Drive;
Photo sharing sites, such as Shutterfly, Flickr, and Picasa; and,
Social media posts, personal messaging, and sharing, through platforms like Facebook, Twitter, Snapchat, and TikTok.

With virtual visitation, a parent can help with homework, read a bedtime story, share the excitement of a special achievement, “attend” a performance, and offer emotional support, even if they can’t be there in person.

Virtual Visitation Laws in California

Virtual visitation is still a relatively new concept, and there are currently only a few states with official legislation that address it, including Utah, Texas, Wisconsin, Illinois, North Carolina, and Florida. As you can see, California isn’t one of them, but in our ever-expanding world of global interaction, it may be only a matter of time.

That being said, whatever your judge includes in your custody order is enforceable by law—including any kind of electronic communication. California courts routinely include virtual visitation as a part of custody orders, and the failure of either party to uphold these important terms can result in fines, a loss of custody, and in some situations, contempt of court.

During divorce or custody modification, parents can either mutually agree to include virtual visitation in their parenting plan, or else request that the court include it in the final order. In these situations, your judge would assess your circumstances to see if electronic communication is a viable option for your family.

When Does the Court Allow Virtual Visitation?

The 2020 COVID pandemic threw the world into the kind of crisis most people probably never even thought to consider, let alone worry about. As lockdowns, travel bans and mandatory quarantines forced global markets to a halt, California legislators were forced to weigh the risk of spreading the disease against the need for visitation.

This crisis resulted in a sudden, unexpected reliance on virtual visitation, which most divorced families took part of in some way. However, long before COVID became a household word, electronic communication was already being used by California courts to supplement in-person visits.

Virtual visitation is particularly useful for cases involving international custody, military custody, move away requests, and even extended business trips, for parents whose careers require frequent travel.

Guidelines for Virtual Visitation

Since electronic communication isn’t officially part of California family law, judges don’t have a specific set of criteria or formula they can apply to these situations.

Instead, the court analyzes what would be in the child’s best interest, and loosely considers whether parents:

Will permit and encourage their child to engage in virtual visits;
Have the tools to facilitate their child’s visits;
Are capable of carving out the necessary time; and, of course,
Whether each has the emotional bandwidth to allow their child to have uncensored communication with the other.

The court is unlikely to grant e-communication in situations of abuse or domestic violence, or when supervised visitation is required. And, as a whole, virtual visitation is most successful for parents who can set aside differences and work harmoniously with one another.

All that aside, if the COVID pandemic has taught us anything, it’s that while virtual visitation can be a vital tool in certain situations, it’s certainly no replacement for in-person contact.

The Drawbacks of Virtual Visitation

For parents who are limited by time, distance, or obligation, virtual visitation opens up an array of opportunities for them to maintain contact with their child. However, this technology has also drawn criticism from those who argue that e-communication is a poor substitute for in person face time.

Some of the arguments against virtual visitation include:

The negative impact of too much screen time on a child;
The burden it could place on a child’s already busy schedule;
The burden it places on a parent’s time and resource; and,
The ineffective, two-dimensional nature of e-communication (for instance, how easy it is to misread context and tone).

As California legislators consider whether or not to standardize virtual visitation in family law, they’ll need to examine some of these legitimate drawbacks, and analyze whether these technologies hinder—rather than actually help—parents and children foster deep, meaningful relationships.

They are also drawbacks that you should discuss with your family law attorney, if you and your spouse are considering making virtual visitation a part of your parenting plan.

Virtual Visitation Attorneys in California

If you have more questions about virtual visitation, and whether it’s appropriate for your situation, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help you figure out the visitation arrangement that will work best for your family.

family-law

FAQs About Child Custody Lawyers

March 1, 2021February 10, 2021
by Briana White

For worried parents, one of the most stressful aspects of divorce is how it will affect your child—especially in terms of custody. With your child’s well-being on the line, you want to be certain that the lawyer handling your case will fight for their best interest as passionately as you would.

At Maples Family law, we understand these concerns, and want to do everything possible to help you feel comfortable with the child custody process.

Here are some of the most commonly asked questions about child custody lawyers in California, and how our team can help you.

What is Custody?

First off, child custody is a broad label that refers to the rights and responsibilities associated with parenthood. In California, these custodial powers are divided into two main groups:

Legal Custody—the right to make decisions on behalf of a child and to choose how they will be raised; and,
Physical Custody—the right and responsibility to have a child physically present, and to care for their needs.

When parents get a divorce, these powers and duties must be shared and/or divided between spouses. To this end, judges can order the couple either to share responsibilities in joint custody, or, give only one parent this authority in sole custody.

How these parental rights are divided in your case will depend on an analysis of a number of individualized factors.

Can I Sue for Custody?

The answer to this question depends largely on what your relationship is to the child, and where you’re at in the family law process.

Parents, for example, inherently have rights to access, possession, and control over their child. However, if a parent has to ask about suing for custody, this probably means they’ve had their rights revoked or limited at some point. If this is the case, that parent would need to petition the court to have their current order amended, before custody could be reinstated.

If you are a parent getting divorced, custody will automatically be decided as a part of your parenting plan, and incorporated into your final order. There is no need to file a separate suit.

In California, grandparents do not have the same inherent rights to custody as a child’s parents. However, there are some situations where grandparents can sue for visitation, custody, or even adoption. Usually these cases arise due to parental neglect or abuse.

Should I Hire a Lawyer for Child Custody?

Yes. Whether you are getting divorced, or suing for custody in another capacity, it is always better to have an attorney, then not.

Family law is complicated and nuanced, and child custody is no exception. Without an attorney, you have a much greater chance of making expensive and irreversible mistakes—some of which could end up costing you your relationship with your child.

In the end, hiring an attorney is well worth the added expense to make sure your interests are being properly represented.

What if I Can’t Afford an Attorney for Child Custody?

If finances are tight, check with your local legal aid office, andexplore what resources are available to you there. The State Bar Association strongly encourages California attorneys to devote a portion of their time to pro bono services each year, so you may be able to find a quality attorney, at no cost.

Also, consider whether or not you even need an attorney. While it’s always better to have one, you might be able to forego representation under certain circumstances, especially if your spouse is not using representation, either.

If this is the case, consider trying to solve your differences out of court. Mediation, for example, does not require parties to have a lawyer present in order to reach a settlement agreement.

What Do Judges Look at When Deciding Custody?

The governing standard for any case involving children is the best interest of the child. Under this presumption, all outcomes are evaluated based on what will satisfy the child’s long-term health and happiness the best.

That being said, California courts strongly assume that a child’s best interest is served when allowed to cultivate a loving relationship with both parents. Hence—baring extreme circumstances, such as abuse or neglect—judges are likely to grant parents joint custody in most cases.

Factors your judge might consider when making this decision include:

The emotional and mental stability of both parents;
Home life in each household;
A parent’s ability to care for the child;
Any criminal behavior;
Potential harm that could befall a child; and even,
The child’s preference (especially if the child is over twelve).

Ultimately, however, every decision will come down to what is in the child’s best interest.

Who is Most Likely to Win a Custody Battle?

In California, it’s common for courts to split legal custody fifty-fifty between spouses. In these situations, both parents would have an equal say in how their child was raised, as well as the right to make decisions on behalf of their child (such education, medical procedures, and religious exposure). Physical custody, however, is another matter.

Since it’s so difficult to split a child’s physical time exactly equal, judges will often appoint one parent to be the child’s primary residence, while the other gets ample visitation. Statically speaking, mothers are more likely to be appointed the custodial parent, however this is not always the case.

With same sex marriage now legal, as well as a greater overall emphasis on protecting paternal rights, the role of custodial parent is no longer assumed. In the modern California courtroom, there is no room for gender roles, and every custodial decision is made based on the child’s best interest, alone.

How Can a Father Win a Custody Battle?

A father becomes their child’s custodial parent the same way a mother does: by being in the child’s best interest.

This analysis does not include gender stereotypes. Instead, the court simply wants to know which parent is most likely to:

Provide the best home environment;
Devote time and attention to their child;
Offer continuity and stability;
Meet the child’s physical, mental, and emotional needs; and,
Cultivate a relationship between the child and the child’s other parent.

If you are a father who is interested in becoming your child’s primary custodian, you should discuss it with your attorney, who can help you develop the rights strategy, moving forward.

Can You Lose Custody Because of Mental Illness?

The short answer is: no. The reality is: maybe.

While the presence of a mental illness, itself, does not affect custody, sometimes the type and severity of the illness can. For example, if symptoms are so severe that they inhibit a parent’s ability to address basic needs, or to provide a safe home environment, these things would certainly impact a judge’s decision. However, on its own, the diagnosis is not a deterrent.

California Child Custody Lawyers

If you have more questions about child custody lawyers in California, and how the team at Maples Family Law can help you, call us at (209) 989-4425, or get in touch online, and together, we can ensure that your child’s best interests are being met.

Guardianship

Legal Guardianship in California

February 19, 2021February 1, 2021
by Briana White

In California, legal guardianship is a court order that gives an adult the responsibility of taking care of a child who isn’t biologically theirs. Once appointed, a legal guardian has many of the same rights, responsibilities, and decision-making power as an actual parent, including the ability to make medical and education decisions on behalf of the child. Because these duties are so similar to what actual parents do, legal guardianship is often confused with adoption, however the two are not the same thing.

Here are a few things to know about legal guardianship in California, why you might want to consider appointing one, and how these scenarios differ from adoption.

Legal Guardianship in California

There are two major categories of legal guardianship in California: Juvenile Court Guardianship, and Probate Guardianship.

Juvenile Court Guardianship

Juvenile Court Guardianship requests come to a judge from either Family Court or a Juvenile Court action. These are the children removed from their home by child protective services due to neglect, abuse, or other dangers. Unification with biological parents is always the main goal in these cases, however if that’s not possible, a legal guardianship appointment will be made.

If a parent does not agree with the decision to elect a guardian, they are free to file an objection with the court, and to make statements at the hearing. However, in the end, all decisions will be made by the judge according to the best interest of the child. If the parent’s objections are overruled, it’s possible the court will still grant visitation rights while the child is under the care of his or her legal guardian.

Probate Guardianship

The second category of legal guardianship in California, is when a child enters the system through probate court. Probate court is the part of our judicial system that handles death matters, such as wills, estates, trusts, and other practical issues that need to be resolved when a person dies. When a legal guardianship application is initiated on behalf of an orphaned child, this is referred to as a “Probate Guardianship.”

Usually Probate Guardianships only apply to children who are under eighteen. For some cases, though, it’s possible to request an extension for youth who are over eighteen, but not yet twenty-one.

Scope of Legal Guardianship Powers in California

The decision to grant an outside adult legal authority over a non-biological child is not something California courts consider lightly. Circumstances that require a guardian will vary from case to case, and sometimes the full spectrum of rights is neither appropriate or needed. Therefore, when granting a legal guardianship, California courts authorize this power in one of three ways:

Guardianship of the person;
Guardianship of the estate; or
Both personal and estate guardianship.

Legal Guardianship of the Person

An adult who is granted physical guardianship over a child has the duty of meeting all the child’s basic, daily needs. This includes food, shelter, safety, and emotional support, but also extends to things like medical care, health needs, and education. When you’re appointed to be a legal guardian over a child’s physical needs, you have all the same responsibilities of caring for that child as a biological parent, plus the legal authority to make necessary decisions to that effect.

Legal Guardianship of the Estate

On the other hand, estate guardianship extends only so far as that child’s property is concerned. Usually this kind of guardian is arranged when a child inherits money or real property, and needs an adult to oversee fiscal matters until he or she turns eighteen. In most cases, the surviving parent is appointed to this position, unless both parents are deceased.

If the child is orphaned, the court might grant both physical custody and estate management to a single guardian. Or, these powers might be split between two people, in order to make it harder for a guardian to take advantage of a child’s wealth and age to benefit themselves.

Who Can Be a Legal Guardian

Anyone can apply to be a child’s legal guardian, and they do not actually have to be related. Guardians may include:

Grandparents;
Adult siblings;
Aunts, uncles, and other relatives;
Foster parents;
Close friends; or,
A teacher, counselor, or any other adult who has a relationship with the child.

Regardless of who applies, all guardianship appointments will be made in accordance with a child’s best interests.

Applying for Legal Guardianship in California

Whether the child’s parents are deceased, or are simply unable to properly care for their children, the application for legal guardianship follows the same basic process: paperwork, court investigation, and hearing.

Paperwork

To initiate a guardianship application, there are several forms that you need to complete, including a petition for guardianship. Many of these forms require supporting documents, so it’s a good idea to have your family law attorney on hand to help you avoid making common mistakes that will delay your process.

Court Investigation

Once all the forms have been filed, the court will assign an investigator to visit your home. This person will conduct interviews, look for signs of neglect or abuse, and conduct criminal background checks on everyone involved. This might sound a little invasive, but it is a necessary step to ensure that guardianship decisions are made according to the best interest of the child.

After these independent inquiries are through, the investigator will file their findings with the court, and copies of this report will be given to your attorney, as well as to any other relatives involved. If there is anything in the account you believe was made in error, your attorney can help you file an objection.

Hearing

The last step to becoming a legal guardian, is to attend the hearing. At this meeting, the judge will listen to all interested parties involved—including the child’s parents, if they are alive and object to the appointment. If there are too many competing interests involved, a judge may even assign an attorney to specifically represent the child’s interest. If the judge approves your application at the hearing, he or she will issue an order to make your position official.

As a legal guardian, you will be expected to file an annual status report. So long as there aren’t any problems, your appointment will continue as outlined in the guardianship order. Usually until the child turns eighteen.

Legal Guardianship vs. Adoption in California

While legal guardianship and adoption function to provide the same, basic care for children in need, they are not the same thing. The primary difference being, that in a legal guardianship, parents retain their parental rights, whereas in adoption, these rights are transferred, and cannot be reacquired. For this reason, the process is generally more rigorous than that of a legal guardianship.

Once finalized, adoption displaces the line of inheritance, halts any child support duties the biological parents might have had, and relieves adoptive parents from the obligation of fostering a relationship between the child and its biological parents—including visitation. Legal guardians, on the other hand, are subject to visitation schedules (as laid down by the court), and unlike adoptive parents, legal guardians must provide special provisions in their will, if they wish their wards to inherit.

In short, once a child is adopted, their new parents have all the same rights, responsibilities, obligations, and authoritative power as biological parents. In the eyes of the law, there is no distinction.

Legal Guardianship Attorneys in California

Whether it’s the permeance of adoption, or merely a legal guardianship, taking on the responsibility of someone else’s child is a huge endeavor, and one that should be thoughtfully considered with your family law attorney. If you have further questions about the legal guardianship process in California, or other adoption-related questions, we are here for you. Call us at (209) 989-4425, or get in touch online to schedule your consultation, and let us help you pursue the arrangement that will work best for you and the child you care about.

family-law

Joint Custody

February 1, 2021
by Briana White

Child custody refers to a parent’s authority to care for their child, and, during divorce, a judge can assign these powers between spouses as joint custody, or to only one parent in sole custody.

The division of such rights can be quite complicated, and couples should not try to resolve these matters on their own. Instead, families should work with an attorney to make sure that both the child’s best interest are being met, and that they aren’t giving up any essential rights. However, that doesn’t mean it has to be a dogfight.

Most couples find that working together to find a child custody agreement makes the whole divorce a lot easier.

But what is custody, and how does it apply to you?

Here’s a little bit about how custody is handled in California, and why you and your spouse are likely to be awarded joint custody rights.

What is Joint Custody

When you become a parent (either biologically, or through adoption), you don an invisible mantle of rights and responsibilities which are inherent to the role. For children born inside the marriage, this parental authority is shared equally and used interchangeably between spouses. However, upon divorce, these powers will need to be distributed between partners, since some responsibilities simply can’t be shared if parents aren’t living under the same roof.

To this end, judges are free to divide parental rights in one of two ways:

Joint Custody—powers are shared between spouses, either unequally or equally; or,
Sole Custody—when authority is given to one parent, alone.

Hence, “joint custody” refers to any situation where the judge orders parents to share parental authority, instead of assigning powers to just one spouse.

Legal and Physical Custody

In California, these custodial powers are broken down into two groups: legal and physical custody.

Legal custody refers to a parent’s right to make decisions on behalf of their child. This includes being able to make major decisions on things like health and education. It also encompasses a parent’s right to sign documents, have access to records, and the right to be able to decide what religious and cultural norms the child is exposed to.

Physical custody, on the other hand, is about where a child spends their physical time. This refers to both where the child will live, as well as visitation (which may or may not be included, depending on how your judge divides physical custody in your parenting plan).

Both of these custodial power groups (legal and physical) can be shared, jointly, or held by one parent in sole custody.

Joint Legal Custody

If you and your partner are awarded joint legal custody, this means that you share the right to make choices about your child’s health, welfare, and education. In these situations, both of you must pass off on all major decisions that require parental authority (such as surgery), and you are each granted equal access to records and information.

As a general rule, courts are loath to take away a parent’s right to choose how their child is raised. And since legal authority doesn’t necessarily require parents to live under the same roof, parents end up sharing legal custody as joint partners in the majority of California divorce cases.

Why a Judge Wouldn’t Award Joint Legal Custody

It doesn’t happen often, but in rare cases, one parent is awarded sole legal custody. This usually only happens in extreme circumstances, though, such as when:

It’s in the child’s best interest for one parent to have exclusive rights and responsibilities;
The parents have proven they cannot make decisions together;
One parent is unfit; or,
One parent is incapable of making decisions.

As you can see, most of these situations revolve around harm, which means that—short of something more serious, such as neglect, domestic violence, or criminal activity—your pleas for sole legal custody probably won’t be awarded.

In short, being a bad spouse doesn’t mean someone is a bad parent, and the only time courts do not grant joint legal custody is if doing so would hurt the child, somehow.

Joint Physical Custody

When parents share joint physical custody, this means they both have the right to have the child physically present in their homes for significant periods of time. Unlike legal custody, however, physical custodial powers have to be divided (rather than shared), since a child cannot be in two places at once. The split doesn’t have to be 50-50, though.

While it is (technically) possible for joint custody to be split 50-50, because of outside influences like work, school, extracurricular activities, and childcare arrangements, dividing a child’s time exactly equally between parents is almost impossible.

Instead, it’s much more common for the court to assign one parent to be the “custodial parent” (or rather, the child’s “primary residence parent”), while the other (the “non-custodial parent”) receives ample visitation.

Examples of Joint Custody Division

Custody and visitation can be divided any number of ways. One of the most common plans is for parents to alternate weeks, starting on a certain day. Monday is a common choice for these families (since it’s practical for school and work reasons), and in this situation, your joint custody agreement could look like this:

	Mom	Dad
Week 1: Monday – Sunday	✓
Week 2: Monday – Sunday		✓
Week 3: Monday – Sunday	✓
Week 4: Monday – Sunday		✓

Other families might prefer to break up this “alternating week” cycle, and include a midweek visit. That way, kids and parents don’t have to go a full week without seeing each other.

If that was the case in your situation, your custody schedule might look like this:

	Mom	Dad
Week 1: Sunday – Tuesday	✓
Week 1: Wednesday		✓
Week 1: Thursday – Saturday	✓
Week 2: Sunday – Tuesday		✓
Week 2: Wednesday	✓
Week 2: Thursday – Saturday		✓
Week 3: Sunday – Tuesday	✓
Week 3: Wednesday		✓
Week 3: Thursday – Saturday	✓
Week 4: Sunday – Tuesday		✓
Week 4: Wednesday	✓
Week 4: Thursday – Saturday		✓

There are also visitation schedules that combine every other week with every other weekend, prolonging the visit for an extra weekend each cycle. This arrangement is common during the summer, for parties who live more than twenty-five miles away from each other.

Other plans might include:

Three days on, four days off;
Alternating three days on, four days off;
Two weekends a month;
Alternate weekends plus two weeks during summer;
Every other holiday; or even,
All time when the child isn’t in school.

This is by no means an exhaustive list. The number of combinations and options available to couples are extensive, and ultimately, the type of joint custody agreement you and your ex-spouse work out will be up to you. After all, only you know what’s best for your family.

Couples who are interested in having more flexibility in drafting this arrangement, however, should try to avoid divorce litigation. Instead, consider an alternative method of dispute resolution, such as mediation or collaborative divorce.

Your Stockton family law attorney can help you figure out what parenting time agreement will work best for your unique situation.

Do You Need to Talk to a Lawyer About Child Custody?

At Maples Family Law, we welcome the opportunity to answer your questions about divorce and issues such as custody, child support, spousal support, and the divorce process.

Call us at (209) 989-4425 for a divorce case review with an experienced Stockton divorce lawyer, one who can give you the advice you need to begin moving forward.

Child Custody

11 Common Questions About Joint Custody Schedules in California

April 20, 2020August 10, 2020
by Angie

If you’re like many people, you have plenty of questions about developing a joint custody schedule during or after divorce. Check out these joint custody schedule frequently asked questions to see if you can find an answer here – or, if you don’t see your question or need personalized legal advice, call us at 209-395-1605 to schedule a consultation with a Stockton divorce attorney.

11 Common Questions About Joint Custody Schedules in California

Check out these 11 common questions about joint custody schedules in California.

What is a Typical Joint Custody Schedule?

In California, joint custody schedules vary greatly from family to family. The courts recognize that no two families are exactly the same – and kids of various ages have different needs. Some typical joint custody schedules include: the 50-50 custody schedule, the 2-2-3 joint custody schedule, and the week-on, week-off custody schedule. Your attorney can help you understand your options if you’re sharing joint custody with your ex.

How Do I Get a Joint Custody Schedule?

When you’re going through a divorce or breakup and you’re sharing custody of your children with their other parent, you get a joint custody schedule by making one. Create your schedule with your kids’ best interests in mind; that’s what it’s going to take to get a judge to sign off on your joint custody plan. You might choose a week-on, week-off joint custody schedule if you have older children, or you might prefer the common 2-2-3 parenting schedule. You can customize your schedule to reflect your family’s unique needs, but the key is that you create something that does what’s best for your children. If the custody schedule you submit to the court isn’t something that serves your child’s best interests, the judge in your case is going to tell you to try again.

What is a 50-50 Custody Schedule?

In a 50-50 custody schedule, each parent has the children half the time. That may mean that you alternate days or weeks, or it might mean that one of you picks the kids up from school, drops them off the next morning, and then the other parent picks them up and starts the cycle over again. This way, each parent has equal time with his or her children. You can even work it out in another way – what’s most important is that it works for your family.

The custody schedule you choose should always be in your kids’ best interests, not yours. The judge assigned to your case will look carefully at the joint custody schedule you’re submitting to make sure it’s truly what’s best for your children.

Related: Child custody in California

What is a 2-2-3 Parenting Schedule?

A 2-2-3 parenting schedule is a common way that parents with joint custody of children work out times to be with them. Many parents choose this schedule because it allows ample uninterrupted time with the children, and each parent gets the kids every other weekend. The numbers in a 2-2-3 parenting schedule represent days, so let’s start with Parent A and Parent B.

Parent A has the children for the first two days of the week. Parent B takes over for the next two days, and then Parent A takes the kids for the three days (to include the weekend). Then, it’s Parent B’s turn to get the kids for two days. Parent A gets the kids back on the second two-day group, and then Parent B takes the kids for three-day weekend. The schedule just keeps going back and forth in this way so that both parents enjoy weekend and weekday time with the children. It’s not right for every family, such as those who live far apart or who have very young children who are used to one parent being the primary caregiver, but it can be a great solution for people who live close to each other with older children.

What is the Best Custody Arrangement?

Some parents argue that the best custody arrangement is the 2-2-3 parenting schedule, the 50-50 parenting schedule, or something else entirely – but it doesn’t matter what some parents think. What matters is what’s the best custody arrangement for your children. The state of California recognizes that kids benefit most from frequent and continuing contact with both of their parents, but what that looks like is up to you and your children’s other parent.

If you have young children, the best custody arrangement might be one in which the kids stay in one home throughout the week and visit the other parent’s home on a few evenings or for some time on weekends. Older kids might prefer the 2-2-3 parenting schedule, or even the week-on, week-off joint custody schedule. When you’re putting together your parenting plan, think about what’s going to be easiest on your children. If they’re in sports, for example, it might make sense for them to stay in one home throughout the week and spend weekends with their other parent. The bottom line is that every family is different, so every joint custody schedule should look a little different.

Related: Infant custody laws

What’s the Difference Between Shared and Joint Custody?

In California, shared and joint custody are the same thing. In other states, the terms vary – and there are big differences between shared and joint custody. However, in California, you can say that you have shared custody or joint custody; both still mean that you and your children’s other parent share the rights and responsibilities of making decisions for your kids, or that you share physical time with the children (or both).

There are two types of custody in California: legal and physical. Legal custody refers to your rights and obligations, particularly when it comes to deciding where the kids will live, where they’ll go to school, what types of routine medical treatment they’ll get, and other things that impact their welfare. Physical custody refers to where the children live.

With joint or shared legal custody, both parents share the responsibility for deciding where the kids will live, as well as making decisions about their health, well-being and education. With joint or shared physical custody, the children live with both parents.

How Can I Get Custody Without Going to Court?

You can get custody of your children without going to court – for the most part. You and your children’s other parent can come up with a custody agreement between yourselves. You will have to go to court (unless your attorney can go on your behalf) to get the judge to sign off on it – and when that happens, it becomes a legally binding court order. The only way to really get custody without going to court is by reaching an agreement with your spouse; you must both agree, and the custody plan you come up with must serve your children’s best interests.

What Does a 70/30 Custody Schedule Look Like?

A 70/30 custody schedule looks like this: A child spends 70 percent of his or her time in the care of one parent, and 30 percent of his or her time with the other. Really, it works out to spending two nights out of seven with one parent (and the other five with the other parent).

Here’s what a 70/30 custody schedule looks like on paper:

	Monday	Tuesday	Wednesday	Thursday	Friday	Saturday	Sunday
Week 1	Parent A	Parent A	Parent B	Parent A	Parent A	Parent A	Parent B
Week 2	Parent A	Parent A	Parent B	Parent A	Parent A	Parent B	Parent A

Naturally, you can modify this schedule so it works out for your family; maybe different days of the week are better.

Why is Shared Custody the Best Arrangement?

Shared custody is the best arrangement – for some families. It’s not best for every family. However, for families who are able to have shared custody, they consider it the best arrangement because it allows children to have frequent and continuing contact with both parents.

Some families aren’t cut out for shared custody, such as those that have had domestic violence issues in the past. When one parent lives too far away, or when the parents aren’t amenable to each other, shared custody can cause more problems than it’s worth.

How Many Days is 70/30 Custody?

Usually, 70/30 custody works out to being five days with one parent and two days with the other. The days can vary week by week, based on what’s right for your family.

What is a Reasonable Visitation Schedule?

A reasonable visitation schedule is one that allows the children frequent and continuing contact with both parents. The state of California recognizes that this is essential for kids, so whenever possible, a parenting plan or parenting time agreement should allow for both parents to spend plenty of time with the children.

Every family is different, though, and what your family finds to be a reasonable visitation schedule might not work for another family. The key to settling on something reasonable is working with your children’s other parent to create the best joint custody schedule for your needs. When you both have a hand in creating it, you’re both more likely to feel that it’s reasonable – and you’re more likely to want to stick to it.

How Far Can I Move With Shared Custody in California?

When you have shared custody, you can move – usually up to 45 to 50 miles away – provided that you have agreement from your children’s other parent. If your kids’ other parent doesn’t agree with you moving, you’ll have to show the court that the move is in your children’s best interest. The court can say no, so be prepared. However, that doesn’t mean you personally can’t move; you may simply have to move without your children.

Do You Need to Talk to a Lawyer About Creating or Changing a Joint Custody Schedule?

If you’re divorcing and need to create a joint custody schedule, or if you’re thinking about moving away because it’s what’s best for your family, we may be able to help you. Call us at 209-395-1605 to schedule a free consultation with a Stockton divorce attorney who understands the complexities of joint custody schedules, legal and physical custody, and other divorce-related matters today.

Child Custody

California Infant Custody Laws

February 22, 2020August 10, 2020
by Angie

California values a child’s right to spend time – and have good relationships with – each parent. But are there California infant custody laws that apply to babies and toddlers?

Here’s what you need to know.

California Infant Custody Laws

California’s child custody laws don’t differentiate by age (except when a child is old enough to express a preference on which parent he or she would rather live with). However, all of our state’s laws are based on one thing: the best interest of the child.

What is the “Best Interest of the Child”?

When courts are determining child custody in California, judges base their decisions on what’s best for the child. Judges can look at several factors, including:

The child’s age
The child’s health
The emotional ties that each parent shares with the child
Each parent’s ability to care for the child emotionally, physically or financially
Whether there’s a history of family violence or substance abuse
The child’s ties to home, school and community
Other factors that are relevant to the case

How California Custody Laws Apply to Infants

The courts recognize that kids’ health, safety and welfare are the most important things in a child custody agreement. That means different factors might come into play when you’re divorcing with a baby. For example, the court might consider:

Whether your child is breastfed or bottle-fed
What kind of childcare is necessary so a parent can work or attend school
Whether both parents are capable of providing for an infant’s needs at home
What kind of attachments your child has developed with each parent

For example, let’s say there’s a mother who’s breastfeeding her baby. The baby’s other parent hasn’t been around; in fact, the other parent has only seen the child a few times over the past several months. In a case like that, the court may award the mother more time with the child and limit the child’s visitation with the father. (Remember, though, there’s no way to predict how a judge will rule. Judges take several factors into account, so no attorney can guarantee any type of custody arrangement.)

Legal Infant Custody vs. Physical Infant Custody

There are two main types of custody in California: legal and physical.

Legal custody refers to a parent’s authority to participate in major decisions about a child’s health, welfare and education. Many parents share legal custody.

Physical custody refers to a child’s physical presence with a parent. Many parents also share physical custody, and the child primarily lives with one parent while visiting the other.

Related: Child custody in California

In the Absence of California Infant Custody Laws…

You can avoid asking the court to make a determination on child custody whether you have an infant or an older child. The best way to do that is to reach an agreement with your child’s other parent – whether or not you were ever married.

Reaching agreements on child custody can be incredibly difficult. As parents, you both want what’s best for your child – but you may not see eye-to-eye on the details. Sometimes, attorneys recommend working with a mediator to reach agreements about custody (and other issues, too).

A mediator is an impartial third party who can dig deep into a conflict and find reasonable solutions. If you choose to work with a mediator, he or she will go back and forth between you and your child’s other parent until you’ve reached an agreement you can both live with. Then, you’ll take that agreement to the judge in your case. As long as the agreement is in the child’s best interests, there’s a good chance that the judge will sign off on it. When the judge agrees, it’ll become part of your divorce settlement (or, if you weren’t married, your official child custody order).

Do You Need to Talk to a Lawyer About Custody?

If you have an infant and you’re thinking about divorce, or if you need help sorting out child custody with someone you were never married to, we may be able to help.

Call us at 209-395-1605 for a consultation now. We’ll answer your questions and start building a strategy that gets you the best possible outcome.

Guardianship

Temporary Guardianship in California: The Basics

January 27, 2020June 8, 2020
by Angie

Temporary guardianship in California means that an adult – someone over the age of 18 – is responsible for a child for a set period of time. The guardian can make decisions related to finances, education, medical care and other important issues, and he or she is responsible for the child’s care, as well.

Temporary Guardianship in California: The Basics

There are several reasons the courts award temporary guardianship to an adult other than a child’s parent. For example, the courts could intervene when a child:

Is not receiving necessary medical treatment
Does not have suitable adults in his or her life (such as when the child’s parent is also a minor)
Has been prevented from going to school
Cannot be with his or her parents for a variety of reasons, such as incarceration, military service or death

If you want to become a child’s temporary guardian, be prepared to prove that guardianship is necessary for the child’s well-being. Some of the reasons courts will grant a person temporary guardianship involve a parent’s drug addiction or alcoholism, domestic violence situations, deportation or serious illness.

Any adult can ask to become a child’s temporary guardian, provided that he or she is at least 18 years old and has never been convicted of a crime. The courts can take the child’s wishes into account, as well. Grandparents, aunts or uncles, siblings and other relatives may petition to be a guardian, as can family friends and people who know and love the child.

How Do You Get Temporary Guardianship in California?

A child’s biological parents can give you temporary guardianship – but sometimes the courts step in and award someone temporary guardianship of a child without the parents’ consent. For most people, the best course of action is to talk to an attorney about this type of guardianship (even with the parents’ consent), because it’s a very serious matter and affects parental rights.

In order for the court to appoint someone as a child’s legal guardian, the judge presiding over the case must be satisfied that it’s in the child’s best interests.

How Long Does Temporary Guardianship Last in California?

Temporary guardianship only lasts for a certain period of time – usually not longer than 6 months. If the child still needs a guardian after the temporary order expires, you can start the temporary guardianship process again or file for permanent guardianship through the court.

Custody and Temporary Guardianship

When you’re granted temporary guardianship of a child, you assume all the legal rights and responsibilities of being a parent. The biological parents’ rights are suspended while the guardianship order is in place – they cannot make decisions for the child. (It’s important to know that parental rights are not terminated, as in permanently taken away, with a temporary guardianship order. They’re only suspended for as long as the order lasts.)

As a child’s guardian, you have full legal and physical custody of the child. You make decisions about:

You decide where the child should attend school, and you’re entitled to all the child’s school records.
Living situation. You determine where the child lives, although you can’t change the child’s residence to a place outside of California unless the court gives you permission.
Medical treatment. You’re responsible for meeting the child’s medical needs, and generally, you have the authority to give your consent to his or her medical treatment. However, if the child is 14 or older, you can only consent to surgery on the child if the child agrees or you have a court order for it – except, of course, in emergencies.

You’ll have other responsibilities, too, such as providing for the child financially and taking responsibility for a child’s misconduct. As a guardian, the court might require you to complete counseling or parenting classes, or to get specific services for the child; every case is different, but your attorney can help you understand what needs to happen in your situation.

What About Joint Guardianship?

Joint guardianship is an option when one parent has a serious medical condition and needs another adult to care for his or her child. The guardian still gets to make the same decisions as he or she would under any other circumstances – just in partnership with the child’s biological parent. If the child’s biological parent passes away, the guardian automatically becomes the sole legal guardian of the child.

Do You Need to Talk to a Lawyer About Temporary Guardianship in California?

If you need to talk to an attorney about temporary guardianship, we can help you. Call us at 209-546-6246 to schedule a consultation today.