Orange County
Child Custody Attorneys

Physical Custody of the Child

If a court orders parents have joint physical custody, it means each of the parents is entitled to have significant periods of physical custody. The law provides joint physical custody must be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, in a way that ensures the health, safety and welfare of children, and addressing issues that affect the child’s best interest, such as history of abuse by a parent, or substance abuse. This is where Orange County child custody attorneys can help.

Where one parent is awarded sole physical custody of the child, that means a child will reside with and be under the supervision of one parent, subject to the power of the court to order visitation.

Legal Custody of the Child

Legal custody describes the legal right of a parent to make decisions regarding a child’s health, education and welfare, which may include areas of medical or psychiatric care, religion, child care, academics, and other large life decisions.

Joint vs. Sole Custody

In some situations, a court may make the decision to have either joint or sole custody for one area of custody and not the other. For example, a court may order joint physical custody with an equal timeshare, but order one parent has legal custody in one or more areas, such as selecting a school for the children. Typically courts will award joint legal custody, but courts may order sole legal custody to a parent where one parent lives geographically distant from the other parent, where there are issues of domestic violence or substance abuse, or where the relationship is so high-conflict that the parties cannot act together in the best interest of their children.

Child Custody Determinations in Divorce

When a married couple decides to end their marriage and the spouses have minor children together, the most challenging aspect of their divorce proceedings is likely going to be their child custody determination. Both parents may believe they have the stronger right to majority custody of their children, or one parent may be better suited to handle a greater share of child custody than the other parent. Whatever the situation entails, the Orange County family court would have the final say in deciding their children’s best interests. The divorcing parents should prepare for an extensive series of difficult legal proceedings for the court to ultimately determine an Allocation of Parental Rights and Responsibilities.

During a divorce, both spouses must provide complete and accurate financial information and provide their testimony in regard to child custody. Essentially, both parents have the right to make their cases for custody, citing their parenting ability, work flexibility, and overall fitness as parents to convince the court to grant the custody rights they expect.

Many divorcing parents in California choose alternative dispute resolution in lieu of litigation to settle their divorces more quickly, more affordably, and with more personalized results. While it’s possible for divorcing parents to mediate a proposal for a child custody agreement in divorce mediation, they cannot reach any firm conclusions regarding child custody or child support through alternative dispute resolution. Their mediator can assist them in drafting a proposal for a parenting plan that’s mutually agreeable, but they must submit this proposal to an Orange County family court judge for a final review and approval. If the judge determines the proposal suits the child’s best interests, they may approve it with little to no alterations.

Child Custody Disputes Between Unmarried Parents

Unmarried parents who agree to live separately while they raise their children should prepare for child custody determination once they have made this decision. While they will not need to contend with many of the issues involved in a typical divorce case, the court will still need to evaluate numerous factors to ensure they have a child custody order and support agreement that suits their child’s best interests.

One issue that is likely to come into play in child custody determinations between unmarried parents is paternity. When a married woman has a child, her husband would be the presumptive father when the child’s birth certificate is created. However, an unmarried father must agree to assume parental responsibilities when his child is born. Paternity disputes can arise if a presumptive father has reason to believe he is not actually the biological father of his alleged child, or if the mother of the child wants legal assurance that her child’s father will be legally accountable for child support.

How Does the Court Determine a Child’s Best Interests?

The judge overseeing a child custody determination must consider the parents’ respective testimonies as well as all available evidence to reach a sound determination of parental rights and responsibilities, including:

• The income of each parent. The court expects both parents to contribute in equal measure toward financially supporting their children. Income and custody rights are ultimately the most crucial factors the court considers when determining child support obligations.
• Each parent’s work schedule and availability to provide for their children’s everyday needs. If one parent has a very demanding work schedule or needs to travel for work on a regular basis, this may not preclude them from obtaining legal custody or making major decisions on their children’s behalf, but the court may be more inclined to grant physical custody to the parent who is more available to look after their children every day.
• The criminal records of each parent. If either or both parents have any kind of criminal records, the court takes these factors very seriously. For example, a parent who has a history of conviction for drug abuse, domestic violence, or any crimes involving children would be unlikely to secure significant custody rights.
• Each parent’s willingness to cooperate. Unfortunately, some divorcing parents will consider their children as tools for leverage and will focus more on “winning” the custody battle rather than ensuring their child’s custody determination is truly what is best for the child. Similar attitudes may manifest in child custody disputes between unmarried parents as well. Judges evaluate the behavior and demeanors of a child’s parents carefully during child custody determinations.
• The parents’ respective living spaces and ability to provide for their child’s basic living needs, including food, shelter, clothing, and access to education and medical care. If divorcing parents have already established separate living spaces or plan to, the court will want to evaluate the places where the children will be living when they spend time with each parent.
• The child’s unique needs. If the child has special medical needs, developmental conditions, learning disabilities, or any other physical, social, medical, or intellectual conditions, the court must take these factors into consideration and determine which parent is better suited to handle these needs.
• The child’s preferences. It’s common for the judge deciding child custody to want to hear from the children their decision will affect, if the children are old enough to convey their preferences in terms of which parent they would prefer to have custody.

Ultimately, every child custody determination will entail unique details, and this is not an exhaustive list of everything an Orange County family court judge might consider when determining child custody.

How Child Custody Influences Child Support in California

California family law upholds that both of a child’s parents are responsible for financially supporting the child. The court determines the shared child support obligation of both parents and then divides this number in half to determine each parent’s respective child support obligation. Child custody determinations inherently lead to child support determinations. Unless both parents earn the exact same amount of income and obtain the exact same custody rights in a completely split joint custody agreement, one parent is likely to obtain greater custody rights than the other.

The court generally upholds that a custodial parent, or a parent with greater custody rights over their children than the other parent, inherently assumes a financial burden for child support by exercising greater custody. This means that the noncustodial parent, or the parent with less custody rights, will likely need to pay child support to the other parent. The respective incomes of both parents are likely to come into play. Generally, noncustodial parents earn more than custodial parents, simply because they have more time to work while the custodial parents must devote time to caring for and raising their children. However, it is possible for a higher-earning parent to still receive custody from a lower-earning noncustodial parent. The exact terms of a child support order hinge entirely on the unique factors at play in the support determination.

Can I Change My Child Custody Order in the Future?

The California family court system acknowledges that a family’s needs may change in many unpredictable ways after a child custody determination has been approved by an Orange County family court judge. If you have a standing custody order in Orange County and something happens in your life that materially affects the terms of your custody order, this change could effectively render the custody order untenable or moot. If this happens, you and your child’s other parent will need to return to family court to determine an effective solution.

The family court system offers a modification procedure designed to allow parties beholden to family court orders to have those orders changed to reflect unexpected life events. Consider a few examples of situations that might prompt a parent with a custody order to file a petition for modification:

• A parent paying child support suffers a severe injury that results in disability, preventing them from working. They may file a petition for modification to have their child support obligation reduced or terminated to reflect their inability to earn an income.
• A parent suffers a debilitating injury or medical condition that prevents them from effectively parenting their children. They may petition the court to have the children’s other parent assume majority custody, or the other parent may file a petition seeking majority custody if they have reason to believe the custodial parent is no longer fit to handle their responsibilities.
• A parent learns their child’s other parent has been abusive. They may file a petition to not only secure sole custody but also hold the other parent in contempt of court. This can allow them to secure a protective order to prevent their children from enduring further abuse.
• A parent paying child support loses their job due to forces beyond their control and can no longer meet their child support obligation. They could petition for a reduced or temporarily suspended child support obligation until they secure new employment and are financially stable again.
• Parents may file petitions for custody modification if either parent intends to relocate with their children. These are often very hotly contested issues that may require completely redesigning the parents’ custody order.

These are only a few possible examples of why parents may file petitions for custody order modification in Orange County. An experienced Orange County child custody lawyer can be a crucial asset if you must navigate a post-judgment modification hearing as a petitioner or as a respondent to your co-parent’s petition for modification.

It’s important to note that changing a child custody order will also likely influence the parents’ standing child support terms. For example, if a noncustodial parent were previously paying child support to their child’s custodial parent but the custodial parent becomes unable to manage their parental responsibilities due to injury or illness, the noncustodial parent may assume custody and would no longer owe a child support obligation to the other parent. The court would need to review the ill or injured parent’s new circumstances to determine whether they have the financial ability to pay child support to the newly appointed custodial parent. Ultimately, there are countless variables that can arise in modification proceedings. Some are very simple, mutually agreeable, and easy to implement, while others may completely reshape a standing Allocation of Parental Rights and Responsibilities.

Relocation With a Child Custody Order

It’s common for parents to want to relocate, but when they have a child custody order in place this may require altering their current custody terms. If a custodial parent wants to relocate, the noncustodial parent may not have any say in the matter if they do not have physical custody rights. However, if the custodial parent’s desired relocation would pose an unreasonable burden on the other parent’s custody or visitation rights, the custodial parent must make a compelling case as to why the proposed relocation would suit their child’s best interests more than their current custody terms do.

Conversely, if a parent intends to relocate the other parent could pursue a petition for modification seeking greater custody rights, assuming physical custody over their children when the other parent intends to move. It is very important for any parent with a custody order to notify their Orange County child custody attorney immediately if they intend to relocate with a child custody order or learn their child’s other parent intends to relocate.

What Happens If a Parent Violates a Custody Order?

Violation of any lawful family court order entails severe consequences. While some understandable issues might arise that prevent a parent from perfectly adhering to the terms of their custody order—such as an emergency that interferes with a pickup or drop-off time when parent—switch physical custody of their children, repeated and willful violations of a custody order can lead to harsh penalties from the Orange County family court.

If you believe your child’s other parent has violated the terms of your custody agreement in any way, it is crucial for you to consult your Orange County child custody attorney immediately to discuss your concerns. You may have grounds to file contempt proceedings and hold the other parent accountable for their wrongdoing. Failing to pay child support payments on time and in full, failure to abide by a visitation schedule, traveling out of state with a child in violation of a custody order, or otherwise violating the terms of a custody order can potentially lead to the parent in violation losing their custody or visitation rights, facing financial penalties, or even going to jail.

One of the most severe penalties a parent can face for significant willful violations of a custody order is involuntary termination of their parental rights. If a judge determines a parent presents a clear danger to a child’s wellbeing, they may restrict that parent from having any further contact with the child. If, for any reason, you cannot abide by the terms of a child custody family court order due to forces entirely beyond your control, it is vital to consult your attorney so they can notify the court and you can avoid the harsh penalties that come with custody order violations in Orange County.

What Is the Uniform Child Custody Jurisdiction and Enforcement Act?

The Uniform Child Custody Jurisdiction and Enforcement Act is a US law that every parent with a custody order should understand. This law aims to prevent interstate custody violations and unauthorized interstate travel for parents with custody and visitation agreements. The only US state or territory that has not signed onto the UCCJEA is Massachusetts, so the terms of the UCCJEA apply to every child custody determination decided in California.

The UCCJEA upholds that a child’s home state laws hold precedence in any interstate custody or visitation case. Parents may not move their child to another state to a different state simply to avoid a child custody or visitation order. Determining a child’s “home state” comes down to establishing the child’s connections to a particular state and where the child lived for the previous six months.

The UCCJEA also requires states to enforce the custody and visitation laws of other states. This means that moving across state lines does not permit a parent to seek a new custody order from their new state or disregard their previous custody order from their former state. Put simply, this provision prevents parental kidnapping. If you have any concerns about your child’s other parent traveling across state lines with your child, an Orange County interstate child custody lawyer is the best asset you can have assisting you.

Learn How an Experienced Child Custody Lawyer Can Help You 

The issue of child custody and visitation is likely the largest one on your mind as you contemplate and consider your divorce. Contact an experienced child custody attorney today at the Law Offices of Lisa R. McCall, A Professional Corporation, at 714.644.8760 or online today to schedule a consultation, and learn how to protect your legal rights as a parent.