Area of Law:
Since child custody laws are regulated by the individual states, the laws can vary significantly from state to state. However, there are some general concepts that anyone with children should be aware of. In California, the determining factors as to who shall maintain custody of a child are laid out in Section 3011 of the California Family Code.
When determining child custody, the court shall consider the following thing: (1) the health, safety and welfare of the child; (2) any history of abuse by either party seeking to secure custody; (3) the nature and amount of contact the child has had with either parent; (4) any illegal use of controlled substances or habitual or continual use of alcohol by either parent; however, any allegations to the foregoing must be corroborated with reports from a state agency.
Types of Custody
Legal Custody refers to the right and responsibility of a parent to make decisions relating to the health, education, and general welfare of his or her child. This means that the parent who has legal custody will choose where the child will go to school, what religion he or she will be exposed to, and any and all medical decisions.
Some unmarried couples have joint legal custody over their children. This means that both parents to whom the joint legal custody refers have the legal authority to make such decisions.
Physical Custody refers mostly to the right and responsibility to choose where the child will live. The parent who has physical custody is responsible for the day to day care of the child, but it should be noted that the non-custodial parent still has the responsibility to provide financial support, which may be judicially mandated in a courtroom. The non-custodial parent will also have visitation rights.
Joint physical custody is a situation where the children maintain two residences – one with each parent. There is generally a close to equal division of time that the child spends with each parent, but sometimes careers and other considerations make that impractical.
One of the most common conflicts to arise when dealing with child custody is when one parent wants to relocate with the child. It may be the case that the custodial parent has a career opportunity or a new relationship that leads them to a distant location. When this type of situation occurs, there are several legal considerations to take into account.
First and foremost, the “best interest of the child” standard always applies in any custodial proceedings, and really in any dispute that will affect the welfare of the child. With the issue of relocation, the burden is always on the relocating parent to show that the move serves the best interest of the child.
The court takes several other things into consideration in addition to the “best interest of the child” standard. If the child is both old enough and mature enough to comprehend the decision, his or her opinion will be taken into account. It is also more likely for the court to approve of a move over a shorter distance than a longer one. Another obvious consideration is the motivation for the move. If the parent is moving because of a great career opportunity, the likelihood that the court will show approval is higher than if the move is primarily to suit the relocating parent’s new romantic relationship.
A relocating parent should do everything in his or her power to accommodate the non-relocating parent. Courts do not look favorably upon deceit and withholding information in situations like this. Because the court is primarily concerned with the child's well being, the relocating parent needs to have a plan for the child in the proposed, new location involving schools, day care, and most importantly, the means to maintain contact with the non-relocating parent.
Due to the variable nature of child custody battles, there is never a general answer that can be applied to every situation. There are many free California resources that can aid you to better educate yourself about the best way to approach your particular situation. Click here to find a child custody attorney in your area.