Navigating Child Custody in California: Essential Insights

For worried parents, one of the most stressful aspects of divorce is how it will affect their child. This is especially true regarding 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. 

At Maples Family Law, we understand these concerns. We 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. 

 

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: 

1. Legal Custody—the right to make decisions on behalf of a child.
2. Physical Custody—the right and responsibility to have a child physically present, and to care for their needs.

When parents get divorced, these powers and duties must be shared and/or divided between the 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 situations in which 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 divorcing or suing for custody in another capacity, it is always better to have an attorney than 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 as it assures you are thoroughly represented. 

 

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

If finances are tight, check with your local legal aid office, and explore 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.

The role of custodial parent is no longer assumed in California with same sex marriage now legal, well as a greater overall emphasis on protecting paternal rights. 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 has an interest 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, Maples Family Law Can Help!