Frequently Asked Questions
Divorce law can be a complex topic for those unfamiliar with the field. At the law firm of Fischer & Van Thiel, LLP, we have taken it upon ourselves to ensure that you are familiar with each issue that arises in a divorce.
How is child custody determined?
When a court is faced with deciding a child custody case there is always one main focus in mind, the best interest of the child or children. In order to determine the best interest of the child a court will assess many factors in order to protect and promote the well-being of a child.
In California, as in most states, the court will focus on a couple key factors when determining the best interest of the child:
- Child’s age and health
- Evidence of who has carried the primary parental role
- Emotional well-being of child with each parent
- Amount of time the child spends with each parent
- History of sexual, substance or emotional abuse in the household or current living environment
- The ability of each parent to provide for the child’s well-being financially and physically
California courts will not take into consideration which parent filed first, or give any preferential treatment based on sex . Both parents begin the custody process with equal rights and after a judge assesses the evidentiary factors both sides have presented he or she will make a decision that supports the well-being of the child. California law also requires courts to take the child’s preference into consideration when evaluating the custody roles of parents. The child must be mature enough to make intelligent decisions regarding custody.
When determining child custody, courts favor making a decision based on maintaining a stable and reliable option that best suits the child’s needs and well-being for the long term. If you need help during this difficult time contact an experienced attorney who can help evaluate the best possible outcome for you and your child.
I am not an American citizen. Will my children be taken from me if I get divorced?
California law explicitly states a parent’s immigration status is not a factor when a judge decides a child custody matter. The state’s family code section 3040(a) and (b) state in part,
(a) Custody should be granted in the following order of preference according to the best interest of the child….To both parents jointly…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… and shall not prefer a parent as custodian because of that parent’s sex…
(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).
The fact you’re not an American citizen will not be held against you. However, that status will not protect you if the judge feels it’s in your children’s best interests that you not have custody of them (though even if you don’t have custody of the children, you should have visitation rights).
If in addition to the divorce, you’re planning on moving with your children to your country of origin, the judge may or may not agree with that. You would have to show not only that it’s in the children’s best interests that you have custody of them, but a move is also in their best interests and would not prejudice their rights or welfare. The other parent could raise a number of objections, including that the move may effectively cut him or her off from the children.
Can I move out of state with the children? Do I have to have an Order?
An out-of-state move can result in a much superior situation for children in a divorce, but can also cause numerous issues should the other parent fail to give their consent for a move. The primary concern of a judge is the health and well-being of the child or children and the potential strain it would put on the relationship with the other parent.
Prior to a divorce being filed, you are free to move unless your spouse objects. They can then seek an Order preventing you from taking the children out of the state. While a divorce is in process, moving out of state with children is generally not allowed until custody and visitation schedules are established.
Post-dissolution, you should be able to move out-of-state provided you have sole custody, while any shared custody or visitation will require permission from your former spouse. If you get permission, then the custody order can simply be modified prior to your move.
If the other parent objects to the out-of-state move, then an Order is required from the court prior to the move. Your attorney can help you prepare a petition seeking permission to move and stating that the move is in the best interest of the child or children. It is best to plan far ahead of a move, as you should definitely not take the children out-of-state until all proceedings have been completed. Taking the child without properly ch
anging the custody order can result in a violation of the current order and, in the worst case scenario, parental kidnapping.
What is most important is the health and welfare of the child over the course of the entire scenario. Talk to your attorney about setting up a petition that properly details how the child can maintain a healthy relationship with the other parent. Patience and careful negotiation is key to ensuring a move out-of-state with little to no issue.
Can we just settle our custody issues without going to court?
Yes. Your divorce will have to go through the legal process but you do not have to rely on a judge to decide personal family matters for you. If both parents can agree on an amicable parenting plan the court will respect it in most cases. Unless there are concerns about domestic violence, child abuse, addiction or criminal activity, you can decide what is in your child’s best interest. Being cooperative and reasonable can avoid a long legal fight it will save you time, money and stress. You may be angry at the other parent but it is in your best interest to be fair and civil. We can help you do that and ensure that you make the best decisions possible.
Can each child live with a different parent?
The courts prefer that parents agree to an amenable custody schedule between themselves. The courts do not like to intervene in intimate family relationships and if it makes sense to both parents for one child to be with the mother and one child with the father, generally there will be no problems with that arrangement. However, with virtually every study in existence concluding that is is generally detrimental to split siblings between different homes, you should be prepared for extra scrutiny by the court. The court looks to the best interest of the child or children and will act accordingly closly scrutinizing how it is in the children’s best interest to be separated from his or her sibling..
- A good example of such a scenario would be where one child is a teenager and the second child is a toddler. If one parent moves away and can no longer send the teenager to a preferred high school, it may make sense for the older child to live with the parent nearest to the school. Rather than disrupt the teenager’s education and social activities, it might be better for them to stay with one parent while the younger child, who has less attachments, may go with the other parent.
Can I be denied custody or visitation with my children?
In most cases it is uncommon for a parent to be denied any access to their children. Only in extreme circumstances where a parent has been involved in criminal activity, drug use, alcoholism or sexual abuse, will custody or visitation be denied. The courts and social workers take the protection of children very seriously and won’t allow a child’s well being to be placed in jeopardy. In some cases, a parent won’t have custody of the child because of certain risk factors but a possible solution to this problem is supervised visitation.
The attorneys at Fischer & Van Thiel believe that every client deserves empathetic and effective legal representation. We understand that a divorce and child custody decisions can be one of the most painful events in your life and we are here to help. We have several convenient offices in the San Diego area and work every day to protect our client’s rights. Call our nearest office today for an evaluation of your case!
How is legal custody different from physical custody?
If you are a party to a recent or currently pending divorce and have children, you are probably familiar with the terms legal custody and physical custody. However, many people don’t know the vast difference between the two. Legal custody is the right of a parent to make major decisions regarding the welfare, health and education of a child. This includes issues regarding where the child will attend school, what kind of religion they will engage in, or whether a child will receive medical care or not (except emergency needs). In California, if parents have joint legal custody of their child decisions regarding welfare, healthcare, education, and religion should be decisions made collaboratively. Joint custody is very common in California and most parents share joint legal custody unless one parent is deemed unfit, parents are unable to make decisions together, or it would be in the best interest of the child for one parent to have sole custody.
Physical Custody refers to where does the child reside and who is responsible for the direct care of the child. The proper, but often misleading terminology is that the parent having more than 50% of the time with the children is the primary custodian and the other parent has visitation. This does not mean that the primary custodian has sole custody. If the other parent has even a small amount of time with their children they are considered to have joint custody. It is very rare for a parent to have sole legal custody as it is only granted in the most severe cases of a parent being of danger to the children.
Divorce can be a very emotional time, for both parents and children, and issues of custody can be especially daunting and should be handled carefully and often with representation. Although parents are encouraged to collectively make the best decision for the child, sometimes court and legal intervention to determine the child’s “best interests” are necessary and beneficial if parties cannot agree.
My ex is planning to move across the country after the divorce. How will visitation work then?
Because you and your soon-to-be ex-spouse know that the move will happen soon after the divorce is finalized, a visitation schedule for this scenario should be included in the divorce agreement. Doing so now will save you from having to return to court later to modify the custody and visitation portion of the agreement.
As with any visitation agreement, you and your spouse can agree to any schedule that is in the child’s best interest. If your children are not yet school-aged, you and your spouse can work out any type of visitation schedule you wish.
The biggest obstacle to a visitation agreement is how to make sure both parents are able to spend time with the child, while working around his school schedule. In most cases where parents live far enough apart that weekend or every other weekend visits are impossible, the non-custodial parent (the parent who does not have the child full time) generally has summer visitation, spring break and at least one major holiday, Thanksgiving or Christmas. However, you and your spouse may instead choose to switch off on some holidays, you may keep the holiday visitation schedule the same from year to year, or you may each take one major holiday. What you choose is entirely dependent on what works best for your family’s specific circumstances.
Keep in mind that if air travel will be necessary to accommodate visitation, you must decide who will pay for the child’s airline ticket. Some parents will agree to share the cost of the child’s airline ticket, while others agree that the non-custodial parent will pay the full cost. Depending on the child’s age, you will also have to decide whether the child will fly as an unaccompanied minor or if a parent will accompany him on each leg of the trip.
The most important thing to remember when dealing with cross-country visitation is to let your child know that, despite the distance, he will continue to have a strong, loving relationship with both parents.
My ex-husband and I cannot agree on a schedule for when he can visit our two boys or when they can stay overnight with him. He is stopping by every day. Can I prohibit him from seeing our kids until we agree on a schedule?
It is not advisable to prohibit your ex from seeing your boys. Visitation between the noncustodial parent (your ex) and the child is presumed beneficial. Therefore, a judge will not look favorably upon you interfering with your ex-husband’s relationship with your children. If there is a proven history of child neglect or abuse by him toward your boys, then your interference may be deemed justified and not harm your position when you seek and obtain a visitation order from the court. Usually, “self-help” methods are not condoned by the judge.
Typically, the court enters a visitation order when it issues the custody order. Because that has yet to happen in your case, you need to seek a court order establishing visitation. The visitation order will prevent conflicts and problems between you and your ex, while also providing much needed stability for your boys. Your boys are the victims of your inability to reach an agreement.
How can you determine the best schedule? You and your ex need to figure out what is in the best interests of your boys. Hopefully, you can together create a plan identifying a weekend and overnight schedule including pick up and drop off details, while also addressing special occasions or unique situations, such as birthdays, holidays, and school vacations. If you are unable to reach agreement, then you will most likely need to seek mediation, before the judge will make a final decision and sign the visitation order. A mediator can assist you in reaching agreement in a cooperative and positive manner taking everyone’s schedules and needs into consideration.