Question 1

Who can get custody of a child?

Accepted Answer

A. Only certain individuals may petition for custody of a child, depending on the circumstances:

Parents – The first choice in most cases.
Grandparents – In the state of California, grandparents may seek custody or visitation provided certain criteria are met
In Position of the Parent – Any individual who has assumed the role of a parent for a certain period of time and the court finds suitable in regard to the particular situation. This may be a step-parent or another family member.

Question 2

What rights do I have as a father?

Accepted Answer

A. The same as a mother. There is no legal basis for discrimination of one gender over the other in child custody cases. Fathers can be awarded the exact same rights as a mother in a child custody case. However, the court does outline three different categories a father or parent other than the biological mother can be: biological parent, alleged parent, and presumed parents. If there is a question of paternity, then you may be required to provide evidence of your parental relationship to the court, such as a DNA test, your signature on your child’s birth certificate, or court documents acknowledging your relationship.

Beyond this, the court awards custody rights based on the best interests of your child, your relationship with your child, and possible the relationship with the mother, if there has been any allegations or charges of domestic violence.

Question 3

Will the child custody arrangement affect child support in San Diego?

Accepted Answer

A. As with most states, the parent who will be spending the most time rearing the child and caring for their day-to-day needs will provide the least amount of child support. However, California courts will always consider the unique factors of each case before determining the proper amount. The factors include:

Both parents' income at the time of the ruling
The child's health expenses and whether or not they have special needs
The cost of the child's education
The amount of time each parent will spend with the child

Question 4

My child was born out of wedlock. How will the courts determine custody?

Accepted Answer

A. In the same manner as they would if the child had been born within the confines of a marriage: based on the best interests of your child and your relationship with your child. The courts will not take into account your relationship with the mother unless impacts your child. However, if the child was born from a one-night stand and you do not have a relationship with him or her, you will face an uphill battle to receive custody. The court may award visitation in order to establish a relationship between you and your child, but you will need the help a family law attorney to ensure your rights are protected.

Question 5

My former spouse is making false allegations of child abuse. What can I do?

Accepted Answer

A. Under California law, any claims of child abuse will be investigated in order to determine the best child custody arrangement for the child. However, the law also acknowledges that false accusations of abuse can and do happen, therefore, Family Code 3027.1 (a) allows the court to impose a fine on the parent who knowingly made a false accusation. The fine will account for the costs the accused parent has sustained as a result of defending against the charge, such as attorney fees. It is in your best interest to reach out to a reliable attorney to represent your claim and provide the insight and guidance you need.

Question 6

We can't agree on a custody schedule – what are our options?

Accepted Answer

A. Unfortunately, if you and your ex-spouse cannot come to an agreement that works for both sides, the courts will make the decision for you. You may work with a mediator to help you reach a plan that works for all parties involved. It is almost always better to work out the various details between each other. Contact a knowledgeable San Diego child custody lawyer to ensure that your rights are protected throughout the process.

Question 7

Can I get sole custody of my child?

Accepted Answer

A. It will depend on the situation. If one parent is proven to be a significant danger to the child's health and well-being, there is a possibility that his or her custody rights will be terminated. This may require a great deal of evidence, such as a potential conviction for a crime, or documented incidents of physical, emotional, or sexual abuse of the child. Even then, a judge may award visitation or supervised visitation before completely stripping the other parent of their total parental rights.

Question 8

What are the rules about moving away with joint custody?

Accepted Answer

A. California courts acknowledge that move-away situations can put intense strain on a parent’s relationship with their child. Sometimes one member must move due to their career, a changing living situation, or for new opportunities. However, parents with joint physical custody must abide by the rules of their custody arrangement.

That means if one parent wants to move away with the child, he or she must demonstrate before a California court why the move is in the best interest of the child. In turn, the other parent may argue that it is not in the best interests of the child. The court will attempt to find a middle ground that works for both parties, but their ultimate goal is protecting the child’s wellbeing and may deny or approve a move-away request based on it.

Question 9

Will my sexual orientation be an issue in the San Diego custody hearing?

Accepted Answer

A. Absolutely not. California state law expressly prohibits using sexual orientation as a factor when determining child custody between parents. Additionally, the court cannot consider a parent's religion, race, or physical handicap when making a decision about custody.

Question 10

Will a new partner affect my custody rights?

Accepted Answer

A. Not necessarily. California courts often do not take your relationship status into account when determining custody. However, if there are allegations of child abuse against your new partner, then the court may change your custody rights if it feels you are not protecting your child. Alternatively, if your relationship with your new partner is impacting your parenting time with your child, then your ex-spouse may have a case to have the custody rights modified.

Question 11

How is legal custody different from physical custody in California?

Accepted Answer

A. California courts enforce legal and physical custody arrangements. Legal custody gives a parent the right to make important decisions on behalf of the child, including long-term decisions about health care, choice of school, extracurricular activities, travel, summer camp, sports, mental health counseling, and religious instruction. Physical custody refers to where the child is living most of the time.

Question 12

How does a court determine the best interest of a child when making custody decisions?

Accepted Answer

A. Judges in California consider the following factors when determining what type of legal and physical custody is appropriate for a child:

The child’s age
The child’s health
The ability of each parent to care for the child
Any history of neglect, violence, or abuse
Ongoing parental substance abuse
The child’s ties to their current home, school, and community.
Emotional ties between each parent and the child

Question 13

Do grandparents have visitation rights in California?

Accepted Answer

A. California law allows grandparents to seek visitation of their grandchildren. The first step is establishing that the ongoing relationship is in the child’s best interest. Grandparent rights may be limited or terminated based on particular circumstances, such as the death of a parent. If a child is adopted by someone other than a stepparent, the rights of the grandparents will be terminated.

California has a strong policy preference for parents over nonparents. It’s often best to resolve these issues by working with the parents or through mediation. As long as the child’s parents are married, grandparents are generally not allowed to file for visitation unless one or more of the following exceptions apply:

A parent joins the grandparent’s petition for visitation.
The parents are living apart on a permanent basis.
One of the parents is incarcerated or voluntarily institutionalized.
The whereabouts of a parent are unknown.
The child does not live with either parent.
The grandchild has been adopted by a stepparent.

Question 14

How does joint custody work?

Accepted Answer

A. With joint legal custody, both parents share the rights and responsibilities of raising a child. The law stipulates that “all major decisions about health, education, and daycare should be made jointly by the parents.” Day-to-day decisions about things like doctor’s appointments are generally made by the parent who has physical custody over a child.

It’s beneficial to communicate with the other parent on a regular basis, and you are required to inform the other parent if their child is going to be spending the night at someplace other than the agreed-upon location. Co-parenting apps are very helpful because they make it easier to communicate with the other parent about changes in plans and times and places when a child needs to be picked up.

Courts in California are required “to specify the rights of each parent to physical control of the child in sufficient detail” to allow a parent to seek legal redress if deprived of custodial control and, if necessary, to “implement laws for relief of child snatching and kidnapping.”

Question 15

What role does mediation play in child custody disputes in California?

Accepted Answer

A. You always have the right to go to court to resolve disputes regarding divorce, child support, custody, visitation, and other important matters. A mediator is an unbiased third party who helps parents reach an agreement. You will always have the final say about any decision made with the assistance of a mediator, and nothing is finalized until both parents sign the appropriate paperwork and file it with the court.

There are many benefits that come from working with a mediator:

Nobody is forcing you to do anything.
Both parents play an active role in the process.
You avoid the hassle and expense of going to court.
The process is flexible.
It may enhance your co-parenting skills.
Parents are in control of the outcome.
It’s less stressful for the children.

Question 16

How does military deployment affect child custody arrangements in California?

Accepted Answer

A. Federal and state laws provide safeguards to protect the parental rights of military personnel who are stationed away from their children. If a military parent is deployed during an ongoing custody battle, you have the right to postpone a hearing under the Servicemembers Civil Relief Act (SCRA).

During deployment, a custody agreement may be temporarily changed to permit the parent who remains in the state to care for the child. However, the custody agreement will revert to its original form as soon as the deployed parent returns to California. Deployed parents also have the right to request a court to allow visitation rights for family members, such as grandparents, when the parent is absent.

San Diego Family Law Attorney Answers California Child Custody FAQs

Frequently Asked Questions

Q. Who can get custody of a child?

Q. What rights do I have as a father?

Q. Will the child custody arrangement affect child support in San Diego?

Q. My child was born out of wedlock. How will the courts determine custody?

Q. My former spouse is making false allegations of child abuse. What can I do?

Q. We can't agree on a custody schedule – what are our options?

Q. Can I get sole custody of my child?

Q. What are the rules about moving away with joint custody?

Q. Will my sexual orientation be an issue in the San Diego custody hearing?

Q. Will a new partner affect my custody rights?

Q. How is legal custody different from physical custody in California?

Q. How does a court determine the best interest of a child when making custody decisions?

Q. Do grandparents have visitation rights in California?

Q. How does joint custody work?

Q. What role does mediation play in child custody disputes in California?

Q. How does military deployment affect child custody arrangements in California?