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The law requires the court to always look at what is in the best interest of the child above all else when determining custody and visitation. Additionally, the law requires the court to make orders that will encourage frequent contact between the child and the parents.
In California, child custody is based on the overall best interests of the child. This means that the health, welfare and safety of children is the first concern of the courts. This standard for child custody is known as the “best interests doctrine” and is combined with a leaning toward frequent and continuing contact with both parents. In California there is no longer any preference or presumption for or against joint custody or even custody to one parent.
There are two important types of “Custody” that must be decided in a divorce in California: legal custody and physical custody:
“Legal custody” refers to the right to make major decisions about a child’s health, education and welfare. “Sole legal custody” means only one parent has the right to make such decisions. If both parents share the right and responsibility to make these decisions, they have “joint legal custody.
“Physical custody” refers to the right and responsibility to care for and supervise the child. “Sole physical custody” means that a child resides with and is under the supervision of one parent; the other parent (the "non-custodial parent") may have the right to visitation if a court believes visitation is in the child's best interests. Parents have “joint physical custody” if the child lives with each parent for significant periods of time.
A "parenting plan" (sometimes called a "custody and visitation plan" or "custody schedule") is a document that sets forth exactly how parents will share their parenting rights and responsibilities after a divorce or separation. To be enforceable, a parenting plan must be in writing, signed by both parents and approved by a judge.
Unlike most states, there is no hard-line rule about limiting the geographical area in which the child may be moved. Generally, a parent who has a permanent order for sole physical custody (also called “primary physical custody”) can move away with the children unless the other parent can show that the move would harm the children. But it is not always clear whether a custody order is permanent or temporary, so what the law requires may be different in your case. If the parents have joint physical custody of the children and 1 parent does not want the child to move, the parent that wants to move with the children must show the court that the move is in the best interest of the children.
The California Family Code outlines in Sections 4000-4014, all of the rights and duties of parents. Any parent will have these rights, unless the court order specifically limits or changes these rights and duties.
A detailed schedule of visitation must be in the Parenting Plan filed with the Court. The standard when determining whether or not a visitation schedule is appropriate is the “best interests doctrine.” That is, the court will only accept a visitation schedule that is in the best interests of the child. Any Visitation schedule should be as detailed as possible, and determine how special dates like weekends and holidays will be handled by the parents.
Section 3020. (a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.
(b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011.
(c) Where the policies set forth in subdivisions (a) and (b) of this section are in conflict, any court's order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.
Courtesy of: California Constitution and Statutes×
Section 3000. Unless the provision or context otherwise requires, the definitions in this chapter govern the construction of this division
Section 3002. "Joint custody" means joint physical custody and joint legal custody.
Section 3003. "Joint legal custody" means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.
Section 3004. "Joint physical custody" means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020.
Section 3006. "Sole legal custody" means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.
Section 3007. "Sole physical custody" means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.
Section 3011. In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:
(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking custody against any of the following:
(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
As a prerequisite to considering allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this subdivision, "abuse against a child" means "child abuse" as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means "abuse" as defined in Section 6203 of this code.
(c) The nature and amount of contact with both parents, except as provided in Section 3046.
(d) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this subdivision, "controlled substances" has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.
(e) (1) Where allegations about a parent pursuant to subdivision (b) or (d) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (b) of Section 6323.
(2) The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.
Section 3040. (a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020:
(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020, and shall not prefer a parent as custodian because of that parent's sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order.
(2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.
(3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
(b) The immigration status of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody under subdivision (a).
(c) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.
(d) In cases where a child has more than two parents, the court shall allocate custody and visitation among the parents based on the best interest of the child, including, but not limited to, addressing the child's need for continuity and stability by preserving established patterns of care and emotional bonds. The court may order that not all parents share legal or physical custody of the child if the court finds that it would not be in the best interest of the child as provided in Sections 3011 and 3020.
Courtesy of: California Constitution and Statutes×
In general, make sure your parenting plan deals with:
Courtesy of: California Constitution and Statutes×