Child Custody Laws Explained

 Divorce is painful, and one of the most difficult parts of separating as a couple can be making the right decisions for the children where child custody is involved.  Over half of couples will divorce at some point, which makes having child custody explained and being sure that you understand how the process works important for anyone who is married with children or planning on having children. 

Within the child custody, there are two separate distinctions.  Physical custody refers to actually having the child reside with you in your home.  The parent the child lives with has physical custody of the child.  Legal custody is held by the parent who makes decisions about the child's life, welfare and upbringing.  Often, both parents will have legal custody while one has physical custody, but both can be shared and in some cases, one parent has the entirely of both.

No matter how happy you were when you got married and had children, and how much you thought your spouse would never fight you for custody, you should realize that it's a possibility. Divorce has a way of bringing out things in people that are quite unexpected, and child custody battles can happen even when the marriage is ended agreeably.

Have child custody explained to you by a lawyer if you think it's a possibility when you plan to divorce (and even if you don't think it's possible, it's a good idea to know the facts anyway). Each state has different laws regarding custody, so you'll want to find out about the laws in your state, rather than go by a general guide. Going to an attorney early can only help if a custody battle takes place.

When you're about to divorce or in a divorce, keep things to yourself and only discuss your spouse with your attorney. This can only help prevent problems with mutual friends and family members, and can prevent anything you say negative about your spouse from coming up in a child custody hearing. If your spouse can show the judge that he or she fears you trying to turn the child against him or her (and any "badmouthing" of your spouse to others could be used to support that) retaining child custody could be difficult, as could gaining child custody if that's your goal. Talk about your spouse to your child custody lawyer and maybe a counselor if you feel the need, but avoid discussing it with others.

When the other spouse fights for custody, or if you are, you won't be able to hide anything from the court.  Not only are finances an open book (though you know this if you're divorcing, as all this must be disclosed already) but your private life and habits can also come under scrutiny as the court determines whether or not you can properly take care of your own child. 

Much of this scrutiny depends on any charges leveled by the other parent about your fitness as a parent.  These things can be fairly friendly, and they can get extremely ugly.  You have no way of knowing which it will be, no matter how well you think you know your spouse. 

Courts can order evaluations of one or both parents if it's believed that there's a mental issue that could prevent a person from parenting properly.  Other factors that are considered are the condition of the home where the child is to live, cleanliness, any drug use or alcohol use, and almost anything the other spouse can bring into question.  You must cooperate with any investigations. 

No matter what your spouse does, though, remember that a child custody battle isn't the place to trade barbs with your spouse no matter how angry you might be.  It's for determining what's best for your child, not either of you.

There are different types of custody that can be awarded:

Joint Legal Custody - both spouses must make mutual decisions about the welfare of the child. This includes things like which schools the child goes to, which doctors, which religion the child will be raised in, etc. But one spouse has physical custody and the other has visitation rights. So the child lives with one spouse while both make important decisions about the child's upbringing. Most custody agreements are joint legal custody.

Joint Physical Custody - the child resides with both parents more or less equally with each parent equally responsible for housing the child and making legal decisions. This is best when the parents live close to one another so that the child can attend the same school while living at either place, for instance.

Sole Legal Custody - One parent has physical custody and also makes all decisions about the welfare of the child without input from the other parent. This is the least common type of custody but is awarded often when one parent is found to be unwilling or incapable of making good decisions for the child. When one spouse is awarded physical custody, the other spouse will typically have to pay child support, which is set by the court based on a variety of factors including income, ability to pay and the needs of the child.

More online information available at the California Divorce Guide

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