Getting a divorce can present many challenges for the couple who is getting divorced as well as their children. One of the issues that can make a divorce acrimonious is child custody. How do you decide who the child is going to live with and who has the right to make decisions about his/her upbringing? When the parents are already going through a tough time, it may be hard for them to come to any agreement about these issues. In such cases, they present their case in family court and the court makes the decision.
If you live in the San Diego area and you feel strongly about getting joint or sole custody of your child, it’s necessary for you to get a good lawyer who will be able to plead your case. The court will take many things into account when making a decision about child custody, such as the mental state of both the parents, whether there have been any instances of domestic violence within the family and whether one of the parents has a history of substance abuse. Your San Diego lawyer will be able to present all the facts of the case in front of the court and make the best case for you to get sole or joint custody.
Establishing Paternity
There are certain cases where paternity becomes an issue. If the parents are unmarried, then it’s necessary for the father to be present at the child’s birth and fill out a Declaration of Paternity at the hospital, after which he will have all the rights and responsibilities of being a father to the child. This declaration can also be filled out later, if necessary. In some cases, if the father refuses to accept that the child is his, then the court might recommend genetic testing. Similarly, if the father believes that the child is not his, then he can ask for genetic testing.
Types of Custody
Basically, there are two types of custody—physical custody and legal custody.
Physical Custody
Physical custody indicates who the child is going to live with. For example, the court might decide that the child is going to live with the mother. In that case, the mother will have sole physical custody while the father will likely have visitation rights. It’s also possible for a couple to have joint physical custody, in which case, the child will live with the mother half the time and the father the other half of the time.
Legal Custody
Legal custody indicates who gets to make important decisions about the child’s life, such as where they’re going to go to school, what religion they’re going to follow and what type of medical care they’re going to receive. Once again, legal custody can be sole legal custody, in which case only one of the parents has the right to make important decisions for the child, or it can be joint legal custody in which these decisions have to be made jointly.
Temporary Custody
Sometimes, the process of getting a divorce can take some time because there are many things that need to be sorted out. Both sides will have to present their case in family court before any decision can be made about child custody. So where do the kids live during this time?
In such cases, the court will grant temporary custody to one or both of the parents. Often, the court might advise that the child continue to live where s/he is currently residing, along with the parent who is currently living at that residence. Of course, the court will also take into account the child’s safety and living conditions before making this decision.
Factors Influencing Custody
As mentioned above, the court will consider various factors before deciding whether to grant joint physical custody to both parents or sole physical custody to one of the parents. Sometimes, one parent might end up getting sole physical custody simply because the other one is moving out of state. At other times, the court will ask the following questions before making the decision:
- What will be best for the child’s health and safety?
- Is there a history of domestic violence within the family? The court will consult law enforcement and child protective services reports before making a decision.
- Do one or both of the parents have any psychological issues?
- To what extent has the child been in contact with both parents?
- Do either of the parents have any alcohol or substance abuse issues, including issues with prescription drugs?
- What is the child’s preference? At times, the court might consider what the child would prefer to do.
- How old is the child? Does s/he have any health-related issues? Would it be best for the child to continue to live in the environment they grew up in?
Basically, the court will always make its decision based on what it considers best for the child. If you strongly believe that it is best for the child to be with you or for you and the other parent to have joint custody, you’ll need a lawyer to present your case to the court.
Keep in mind that child custody decisions are not absolutely final. If the circumstances change, the court can revisit the issue and make a different decision, based on what would be best for the child. We can help you through the Child Custody Modification process.
Visitation
When one of the parents is given physical custody, then the other parent usually gets visitation rights. There are different types of visitation.
- Scheduled visitation is when the parents come up with a visitation schedule about how much time the child will spend with each parent.
- Reasonable visitation is when the parents are on good terms and maintain a flexible visitation schedule, depending on what works for them.
- Supervised visitation is when the non-custodial parent only gets to visit the child in the presence of the other parent or some other trusted adult/professional.
- No visitation is when the court deems that being with the parent might be harmful to the child, usually due to domestic violence or substance abuse issues.
Whether you are trying to get custody of the child, to be able to write a visitation agreement, a third-party child custody or Intrastate Custody Agreements, getting a lawyer can be in your favor. The lawyer will know exactly how to present your case in family court in the best possible light, thus increasing your chances for custody or visitation.
Contact our lawyers at childcustodylawyersandiego.com to learn more about getting sole or joint custody of your child.