Saturday, January 19, 2008

Child Custody

What is the legal definition of "physical custody" of a child?

Physical custody is your actual right to be with the child, so your time share of the child. If you're with the child, that's physical custody. It's the actual time that you're spending with the child while they're there.

What is the legal definition of "legal custody" of a child?

Legal custody is your right to make decisions regarding the health, safety and welfare of the child, like where the child goes to college or whether the child is Christian or Jewish. Legal custody is like a legal guardian of the child.

What is the legal definition of "sole custody" of a child?

Sole custody is 100% custody. If you're the sole custodial parent that means you have 100% custody of that child. When you're talking custody in California, it's split between legal and physical. Those are two different concepts - legal custody and physical custody. When you're talking about sole custody, that's just a blanket statement. You could have sole physical custody or you could have sole legal custody.

What is the legal definition of "joint custody" of a child?

If you have sole custody of someone, that means that you have 100% custody. You can have sole legal custody, or sole physical custody. Alternatively, you can have joint physical custody or joint legal custody. So sole custody versus joint custody is just whether you split this custody with someone. But what is more important is legal custody versus physical custody. But I can tell you, generally the order I've seen is that the parents will have joint legal custody unless one person is incarcerated, or otherwise not capable of making legal decisions. You're always going to be able to participate in the decision-making power of that child. Physical custody is usually joint as well, if you're living in the same vicinity. It's going to be three days here, three days there, or every other weekend. Something like that.

What's the difference between "custody" and "visitation"?

There's a lot of confusion between those two terms, because a lot of people think that if you have visitation rights that means you don't have custody. That is not really true. In California, whenever you spend time with a child, you have physical custody. So basically, even if you are with the child 10% of the time, and it's considered visitation rights, you are still sharing custody; you still have joint physical custody even if you have visitation just 10 percent.

What factors are considered in awarding custody of a child?

The factors that are considered in awarding custody of a child are based on the term "best interest of the child". So, you're going to get custody based on what is in the best interest of the child and that's a slew of factors. The best interest of the child is a very vague kind of term and it depends on so many things. Generally, if it's in the best interest of the child to remain with the siblings, it's not in the court's interest to split siblings; it's not like dad's going to get the son, mum is going to get the daughter. The best interest of the child is to keep them together; that you have your brothers and sisters. It could depend on which schools are better. It could depend on maybe if one parent has remarried, so it's more like a home; although the court isn't going to hold it against you that you didn't remarry. It's just a variety of things. Drug use, obviously is not in the best interest of the child, and prostitution is obviously not in the best interest of the child. Interestingly enough, you're not supposed to consider parents' sexual preference. So, a lot of people think that if you're gay, you can't get custody. That's not true. The court is not supposed to consider whether you're a homosexual or a heterosexual in awarding custody. It's just different factors. I would go and see a custody specialist, because there's a way you can twist the situation to try to get custody. However, generally, if I was a judge, I would order joint custody. This is because every child has an interest in seeing both parents, and the law says it's always in the best interest of the child to have frequent and continuing contact with both parents. So, that's just the way it's going to be unless one person is incarcerated, or the other person's a drug dealer, etcetera.

Is the mother typically awarded custody of very young children?

I wouldn't say that the mother is always awarded custody of a very young child. Sometimes breastfeeding will play a factor, but I have seen fathers get full custody of babies. It just depends on the best interests of the child.

Beside the parents, who can claim custody or visitation rights?

Generally, the only two people with rights to a child are the mother and the father; their parents. Sometimes a grandparent can have rights; such as if one of the parties dies, is incarcerated, or is otherwise unavailable or unable to take care of the child. Then, a grandparent or a blood relative might assume the right. However, generally, unless you're the parent, you're not going to have custody rights.

What is the typical visitation schedule in a joint custody arrangement?

It really depends on how old the children are and how far the parents live from each other. However, generally, a typical visitation schedule would be the following. There's a custodial parent (somebody that the children live with) and then there's the non-custodial parent, who will have about two or three visitations during the week, and then the parents will alternate weekends. That's a typical parenting plan. It obviously changes because if the child is two months old, then it might not be the same as if the child was a running-around five-year-old toddler. Also, it changes if the father lives in LA as opposed to San Diego, for example, so distance really matters, too. So, it really it depends. There's no typical parenting plan.

Is the judge's decision over my child's custody final?

Oh, nothing in the legal system is ever final! You can always change it. If you do not like what your judge ordered, you have many options. You can file a motion for him to reconsider or you can appeal so that it'll go to a different court; a higher court, to overturn his ruling. Or, like I said before, if there's a change in circumstance, you can go in again and have him alter his order.

What factors might compel a judge to modify a custody award?

If there is a final award of child custody entered, you're going to have to show change of circumstance to modify the order. A change of circumstance can be anything from someone losing a job, somebody moving out of state, somebody getting incarcerated, somebody dying; something that shows change of circumstance. Maybe you get a lower paying job, maybe you have another baby; it just depends.

Will I lose my child custody rights if I move far away from my ex-spouse?

If there is a move-away case where the parent picks up and moves to a different country, then joint physical custody will be impossible, and that's when you'll split it up. However, the parents, even in a move-away case, will still in most circumstances share legal custody, and that's a decision making power regarding the child.

Can my ex-spouse move out of state with my child?

What you're talking about is a move-away case, and that's when one parents decides to move away. The law regarding that is a litany and it's always changing. Currently if you are the custodial parent you can move away and the non-custodial parent has to prove that it's a detriment for the child in order to prevent you from moving away. However, it's always changing and it's different in every state, so I would go to your local government.

Can my religion affect my child custody rights?

Everything depends on the best interest of the child. So, if it's not in the best interest of the child to become a Christian, then you know it might affect custody. It generally will not, unless it harms the child in some way.

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