Your Definitive Guide to
Child Custody and Support
If you’re a divorcing parent, protecting your child’s happiness and wellbeing is likely one of your top priorities. In order to push for the best outcomes for your child, it’s important to work with an attorney who has experience helping moms and dads navigate legal issues related to child custody and child support.
There’s more to child custody than just deciding whose house your child will live in. Divorcing parents should understand the difference between legal custody and physical custody. Legal custody refers to the right to make decisions regarding the child in matters such as medical care and education. Physical custody, on the other hand, refers to the way in which the child’s time is divided between the parents.
The financial side of your divorce will also have an impact on your child. Who will be responsible for your child’s expenses, such as health insurance, extra-curricular activities, and school tuition? Child support arrangements are intended to ensure that this financial burden is divided fairly between the divorcing parents, often by requiring one parent to make payments to the other to help cover the child’s expenses.
When Can My Child Choose Where to Live?
Many parents ask - at what age does my child get to decide where to live? Or - my child is 14 so doesn’t she get to decide the schedule? Older children often have strong opinions about where they would like to live and how they would like to divide their time between their parents post-divorce. Contrary to popular belief, though, even teenagers do not have full decision-making authority about child custody arrangements.
Under the California Family Code, a child who is at least 14 and wishes to address the court, must be permitted to do so unless the court finds it is not in the child’s best interest to do so. As long as the child is still a minor, however, the court’s primary goal is to do what’s in the child’s best interest, even in cases where that might conflict with the child’s desires. Courts prefer to keep children sheltered from adult issues even if those adult issues involve creating a parenting plan and an ongoing divorce.
Legal custody options: joint vs. sole
Overview
There are two main ways legal custody of a child can be split between divorcing parents: joint custody and sole custody. Again, legal custody refers to which parent has the right to make decisions on behalf of the child. This can include decisions about their education, their medical treatments, and more. When parents are granted joint legal custody, they both have a say in these matters. The parents must reach agreements on issues such as choice of school, medical professionals and treatment, and mental health treatment for the child.
If the judge chooses to grant one parent sole legal custody, however, decisions about the child’s life are solely in that parent’s hands. In an overwhelming majority of cases, the parents share joint legal custody. This is true even when one parent has substantially more timeshare with the child than the other. In extremely high conflict cases, cases involving domestic violence, and cases involving drug or alcohol abuse, the court may award one parent sole legal custody.
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Definitions
Legal custody: The part of child custody that involves the right to make decisions regarding your child’s life. This may include a variety of decisions, such as medical decisions, financial decisions, and educational decisions.
Visitation rights: If one parent is granted physical custody of the child, the other parent may have visitation rights. Visitation can occur over a weeknight dinner, overnight, or even a weekend. Grandparents can also petition the court for visitation rights.
Physical custody: This refers to which parent lives with the child and is therefore responsible for the child’s everyday care and needs. Courts may grant parents joint physical custody where the child alternates time between the parents, or sole physical custody, where the noncustodial parent can visit the child or is not involved, depending on the situation.
“Best interests of the child” standard: California courts consider a number of factors when determining child custody arrangements. However, their ultimate goal is to make decisions that are in the child’s “best interests.” In other words, courts must consider what will best support the child’s physical, emotional, and developmental wellbeing.
Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA): This is a law that ensures that court-ordered child custody arrangements will be enforced the same way from state to state. One of its major functions is to prevent parents from moving across state lines to dodge child custody orders.
730 Evaluation: This is a court-ordered assessment in which a court-appointed expert examines family relationships, living arrangements, and more in order to provide insight and information that the court will use in determining which custody arrangements are in the best interest of the child.
Father’s rights and paternity actions
Overview
Rest assured, California courts recognize the strong bonds that children can share with both their mothers and their fathers. In fact, fathers’ rights and paternity are bigger issues today than ever before. Historically, it was generally expected that mothers would almost always win primary custody of their children, with fathers restricted to visitation rights. In those days, fathers were also almost always expected to pay child support because women could not earn the same salaries as men.
Currently, gender norms have no place in the family courtroom. If you’re a passionate, involved father, you’ll be happy to learn that gender bias will not get in your way of having a fair shot at playing an active role in your child’s life. Nor will you necessarily need to pay child support if it doesn’t make sense for your family’s situation.
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Definitions
Paternity action: Also known as a parentage action, this is a legal proceeding through which a man can establish himself as the father of his child and ensure that he can exercise his parental rights. A paternity action is only necessary if the parents are not married. Otherwise, it’s assumed at the time of birth that the mother’s husband is the child’s father and no action needs to be taken.
Ways to establish paternity: In California, paternity for unwed fathers can be established in one of two ways. Your first option is for both parents to voluntarily sign a declaration. Your second option is a court order, which can be petitioned for via paternity action by either parent. In cases where either parent does not want paternity to be established, a DNA test may be necessary.
Presumptive parent status: Under certain circumstances, such as when the parents are married at the time of the child’s birth, the law presumes the identity of the father. In this case, the presumed father is automatically granted parental rights. Unwed couples should be aware that despite an ongoing relationship, unwed fathers do not have a presumption of paternity. In some cases, the presumptive father (husband of the mother) is not the biological father of the child.
Father-child relationship: Fathers can strengthen their relationships with their children by playing a loving, supportive, and involved role. Courts take the father-child relationship into consideration when determining child custody arrangements.
Mother-child relationship: Like fathers, mothers can also strengthen their relationships with their children by playing a loving, supportive, and involved role. Courts also take the mother-child relationship into consideration when determining child custody arrangements.
Age of custodial decision: A minor child cannot decide which parent he or she will live with, or which parent will have decision-making authority over him or her. However, once a child reaches the age of 14, California law states that if the child wishes to address the court regarding his or her wishes regarding custody, the court must permit the child to do so unless there is a finding that is not in the child’ best interest.
Visitation rights
Overview
“Visitation” can refer to any time that the noncustodial parent is able to spend with the child. Even in cases of joint custody, it’s considered visitation when the parent with less than 50% physical custody spends time with the child. Visitation also refers to much more limited time together, like supervised visitation. Ultimately, “visitation” is an umbrella term that refers to anything involving the manner and amount of time each parent spends with the child or children.
There are a few different types of visitation orders that may be issued by family court:
- Scheduled visitation: Visitation according to a schedule which specifies dates and time for parents to share the child and is intended to reduce conflict and confusion.
- Reasonable visitation: This type of visitation is more flexible and allows the parents to make their own decisions within a general framework.
- Supervised visitation: This type of visitation requires that the time a parent spends with the child is overseen by either the other parent, another responsible adult or a professional agency. Supervised visitation is ordered when issues such as alcoholism or drug addiction make it difficult for a parent to be responsible for the child, or when the child does not know the parent well enough to feel comfortable together without a familiar face present.
Sometimes non-biological parents can get court-ordered visitation rights. However, this is rare because the U.S. government asserts that parents have a fundamental right to raise their own children.
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Definitions
Co-parenting: When divorced parents learn to work together as a team to raise their children despite their differences. Good co-parenting relies on strong communication skills and always putting the child’s needs first.
Make-up dates: When a scheduled visitation is missed, custody orders may require parents to find specific make-up dates. It’s wise to keep a record of any missed and made-up visitation in case you need to show the court.
Supervised visitation provider: When family court orders supervised visitation, it sometimes includes a provision as to who the supervisor will be. In some cases, it may be a friend or family member, while in other cases you may be required to hire a professional supervised visitation provider. This is a neutral third party who will be paid to supervise the visits.
Parenting plan: A parenting plan is a part of your custody agreement that’s developed by the parents or the court during the divorce process. It outlines the schedule by which the parents will care for the child. Parenting plans need to be flexible, but they can provide a healthy framework that you can refer back to if disputes arise in the future.
Proving detriment to the child: In cases involving domestic violence, there is a rebuttable presumption that an award of joint legal or physical custody to the perpetrator is detrimental to the child. Another instance involving detriment in family court proceedings is in a move away action. A non-custodial parent opposing a move by the custodial parent, must prove that the move would be detrimental to the child’s best interest. Additionally, in visitation cases where a non-biological parent is requesting custody, they must prove that granting custody to the parent would be detrimental to the child.
Stepparent visitation rights: It’s difficult for stepparents to attain visitation rights in California. The law generally dictates that it’s in the best interest of the child to be cared for by his or her biological parents. However, if living with the biological parent(s) is detrimental to the child and the stepparent has a strong relationship with the child, this route may be worth pursuing.
Guardianship: Guardianship refers to situations in which the rights and responsibilities of caring for a child are given to someone other than the child’s biological parents, like stepparents or grandparents.
Relocation and child custody/child support
Overview
Relocating becomes a bit more difficult when you’re divorced and share your children with your former spouse. If you have a good faith reason to move away, like a job or a family obligation, it’s possible to do so. When deciding whether to grant or deny a move away request, the court must consider factors such as the current parenting plan, the distance of the move, the child’s social ties, the age of the child, the child’s interest in stability and continuity, the child’s relationship with each parent, and the relationship between the parents, including the likelihood of the moving parent to facilitate the other parent’s relationship with the child after the move.
The interplay between relocation and child custody is particularly relevant for military families because members of the military often get deployed or relocated without much notice or say in the matter. At Cage & Miles, we have extensive experience helping families with these matters. It’s important to note that deployed service members can delay court proceedings if they’re away. An attorney can help you better understand your rights under the Servicemembers Civil Relief Act (SCRA).
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Definitions
Family Court Services (FCS): FCS is a free service provided by the court to help parents come to a child custody and visitation agreement. FCS typically gets involved in cases where divorcing parents are struggling to agree on a parenting plan. In San Diego County, if the parties are unable to reach a resolution at FCS, the FCS counselor will write a recommendation to the assigned judge with proposed orders for a parenting plan and other custody-related issues.
Servicemembers Civil Relief Act (SCRA): This is a law that protects soldiers, sailors, airmen, marines, and other service members from being sued while on active duty. It extends to other court matters like child custody hearings as well. A Cage & Miles attorney can help you understand your rights under this law.
Custodial parent vs. noncustodial parent: These terms refer to physical custody, not legal custody. The custodial parent is the one the child lives with more than 50% of the time, and the noncustodial parent is the one he or she lives with less than 50% of the time.
Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA): This law ensures that court orders involving child custody are enforced uniformly from one state to the next. This means crossing state boundaries won’t exempt you from following the child custody orders issued in your home state.
“Home” state: Under the UCCJEA, the child’s home state is the state where they have lived for at least the last six months. If they were living in one state long-term but a parent moved them to avoid child custody orders, the original state is the child’s home state.
Child support payment issues
Overview
Unfortunately, situations sometimes arise that make it difficult for a parent to pay court-ordered child support. However, the law clearly states that parents must financially support their children regardless of their circumstances—whether or not they’re married to the child’s other parent, and whether or not they’re disabled, injured, chronically ill, mentally ill, deployed, bankrupt, or incarcerated. Simply put, no life circumstances relieve you from your obligation to pay court-ordered support.
If you’re struggling this may seem harsh, but the law is not without recourse. If you’re facing any of the above circumstances, it may be possible to pay a reduced amount of child support to better fit with your means. However, you need to petition the court for a modification in order for this to be a possibility. California has a strict guideline child support formula that factors in income, custody arrangements, health care expenses, and more. Unless and until you get a modification, though, the state has resources to enforce required payments including wage garnishment, passport denial, suspension of your driver’s license, revocation of your professional and occupational licenses, bank and property liens, interception of tax refunds, and interception of lottery winnings.
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Definitions
Arrears: This refers to the “backlog” of child support payments that you owe. When child support is overdue, it doesn’t disappear but rather your debt grows with each missed payment. It’s important to act quickly if you cannot pay what you owe.
California guideline calculation: Courts must adhere to certain standards when setting child support payments. This keeps the system fair for everyone. They use a calculator that takes factors such as income and custody into consideration.
Wage garnishment: The state can take money out of your paycheck and apply that money to the child support that you owe.
Declarations of Disclosure (DOD) – Preliminary and Final: In the divorce process, you must disclose all material facts and information about your finances, including assets, debts, income, and expenses. The preliminary disclosure takes place early on in the case, while a final disclosure takes place near the time of settlement or trial. However, disclosure documents should be updated any time there is a change to the information provided.
Schedule of Assets and Debts (SAD): You will need to use the FL-142 form (or SAD) to demonstrate your financial situation to the court.
Imputed income: If it’s clear that a parent can and should be earning more income than they actually are, a judge can decide to use an imputed income amount to calculate the guideline child support order.
Child support add-ons: Some expenses may be added to a base child support amount. For example, the parties may be ordered to share equally uncovered medical expenses, childcare, private school tuition, and/or extracurricular expenses.
Modification of child custody and child support orders
Overview
Under certain circumstances, child support and child custody orders can be modified, but these matters always need to go through the court for changes to be enforceable and requests will not always be granted. Child support modifications are only allowed when there is a “ change of circumstances,” which is assessed on a case-by-case basis but can be based on things like changes in earnings and military deployment.
Child custody orders are considered more open-ended than child support. As children get older, their needs and “best interests” change. Reasons to modify a child custody order might simply be that the child’s needs or wishes have changed. However, modifications can also be granted on more serious grounds like domestic abuse or substance abuse in the home, incarceration of the custodial parent, mental illness, injury, disability of the custodial parent, or relocation of the custodial parent.
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Definitions
Income and Expense Declaration (IED): The FL-150 or IED is a form you’ll be required to fill out when dealing with a child support matter. You’ll answer questions about your income, investments, expenses, and more.
Change of circumstances: You must prove that a change of circumstances has occurred to modify child support. The change can relate to any of the factors used to calculate guideline child support such as the timeshare, income of either parent, tax filing status or tax deductions.
Statutory guideline amount: This refers to the amount of child support you’ll be required to pay based on statutory guidelines, i.e., the formula used consistently throughout the state to determine child support amounts.
Standard of living: This refers to the type of lifestyle lived by the children and parents. Your standard of living can vary greatly depending on how much money is at your disposal.
Earning capacity: This refers to how much money you can be expected to earn based on your skills, education, industry, and experience.
Ability to pay: This refers to a parent’s financial situation and the amount of child support they are able to pay based on their earning ability and the guideline formula.
Financial hardship: Some scenarios can change your financial situation for the worse. The court often recognizes financial hardships like job loss, reduced salary, inability to work due to injury, and so on. If you cannot pay your child support due to financial hardship, talk to an attorney right away.
