Child custody frequently asked questions answered by a family lawyers at the office of Paul Staley

Does the mom always get custody?

No. The court is required to make decisions "for the child's best interest." The court wants to be sure that the child has continuity, stability, and a devoted parent. The court starts out by splitting physical custody 50/50 between the two parents. Then, if there's a reason to give one parent more custody than the other, the court will make an adjustment. Reasons might be: the kids are too young to be splitting time between two houses, the parents live far apart, one parent has an addiction, or one parent works odd hours. If adjustment are made, it is usually in favor of the parent who has been a stay-at-home parent or who is most involved in the child's life and attends to their daily needs (ie: cooks for the kids, puts them to bed, goes to teacher conferences, attends doctor's appointments, etc).

Is homosexuality an important factor in determining custody

No. As explained above, custody decisions are based on what is best for a child. The court is looking for continuity, stability and a devoted parent, which may be a gay parent or may be a straight parent.

I have custody of our children can I claim the child as a dependent

Yes. You can claim the child as a dependent if the child lives with you over 50% of the time.

Does religion enter into determination of child custody.

No. The constitution protects religious freedoms and your decision to raise your child in a certain faith is irrelevant unless it somehow harms the child or puts the child at risk. If your child has a regular church schedule, the court will try to maintain stability and will generally avoid disrupting the child's schedule. For example, if the child always goes to church with dad on Sunday evening, the Court will try very hard to create a visitation schedule allowing dad to have time with the child every Sunday evening.

What is the difference between custodial parent and noncustodial parent

There are two types of custody in California: Legal and Physical. Legal custody refers to the ability to make educational, medical and health care decisions for the child. Usually, the court will give joint legal custody to the parents, meaning that each parent has equal decision-making power for the health and wellbeing of the child. Physical custody refers to the living arrangements. The custodial parent is the one with whom the child lives the majority of the time. The non-custodial parent has the child less frequently (under 50%). The non-custodial parent generally has "visitation" rights, meaning that they have the right to see and visit the child but they do not have primary physical custody.

What is child visitation in a parenting plan

Child visitation in a parenting plan is the schedule for the times when the non-custodial parent will see the child. Some orders are very loose and allow the non-custodial parent a right to "reasonable visitation." Reasonable visitation does not set out a precise schedule. Other visitation schedules set out exact times and dates for the non-custodial parent to see the child(ren). Generally there is a "pick-up" time and a "drop-off" time for the visit, as well as a location where the exchanges are supposed to take place.

Can Child custody rights be modified

Child custody rights can be modified but only if there is a substantial change in circumstances. If you want to modify your order, you will have to prove a substantial change in circumstances and you will most likely have to go through mediation again so that the mediator can assess the changes and make a new recommendation based on the child's best interest.

Does an extramarital affair has an impact on custody

Usually not, unless the affair will affect parenting ability in the future. The court is required to make decisions based on the child's best interest and an affair is irrelevant unless there is a connection to parenting ability.

if child support is not paid can visitation be allowed.

Depriving a parent of visits is a big no-no. If child support is not paid, the proper remedy is to go to court and get an order for arrears. Remember that the court ordered visits because it thought that it was best for your child to see the other parent. By depriving the visits, you are interfering with your child's relationship with the other parent and doing something that is NOT in the best interest of your child. The court will not be happy with this type of behavior.

Do the wishes of the child had any influence in custody decisions.

It depends. If the child is old enough, the mediator will interview the child and may base his/her recommendations on the interview. If a mediator is not involved in your case, you can ask for an attorney to be appointed to represent the child. This person is called minor's counsel and will act as the child's voice in court. Minor's counsel can be a great addition to your case, but the parents usually split the cost, which can add quite a bit to the legal fees.

What happens in a custody dispute when one parent is mentally ill.

It depends on how the mental illness affects the ability to parent. If the illness does not impact the ability to parent (for example, the mental illness is controlled with medication), then it would not have any bearing on a custody dispute.

Can expert witnesses be used in custody battles.

Yes. You can ask for a custody evaluation, which will involve having an expert involved in the case. Expert witnesses can be costly, but are another way to put a neutral third party opinion in front of the judge. Do grandparents have visitation rights Usually not, unless the grandparents have their own legal rights (for example, they adopted the child or are the legal guardians of the child).

is marital status important in seeking child custody and visitation

It really depends. Is one parent in a new marriage and ignoring the child in favor of his/her significant other? Or is one parent in a really secure marriage with a spouse who loves the child and is a great step-parent? Marital status alone isn't important---it's how the marriage will impact the stability and well being of the child that matters.

What I don't like the present custody order can I file for custody in another state.

You can... but, you're likely to be wasting your money. Once the other state finds out that you have a custody order here, they should refuse to make any other decisions until the California court gives them permission. If you and the child still live in California you will need to modify the orders here.

What is a move away in order and how do I get one.

A move away order is a court order giving you permission to relocate with the child. Because moving will impact the other parent's visitation and the relationship he/she has with your child, the Court does an assessment to be sure that the move is for a good reason and in the best interest of the child.

What are some common arrangements for child custody visitation.

Arrangements depend on the age of the child(ren). If they're in school, a common arrangement might be for one parent to have the kids during the week and the other parent to have the kids during the weekend or every other weekend. Another arrangement might be for one parent to have the kids every other weekend and for one or two overnights during the week. For young kids, a common arrangement might be splitting up the week so that one parent has the kids for three days, and the other parent has the kids for four days.

What if both parents agreed on child custody and visitation

If both parents agree, then your case will be significantly easier! You will enter into a stipulation, which is the court's word for an agreement. The stipulation will be filed in court and will become the court order for custody and visitation. Can I take my child out of state Probably but it depends on your orders. Depending on your orders, you may need to provide written notice to the other parent.

how is child custody decided when parents divorce.

Child custody can be determined a few different ways:
1) You and the other parent agree to a certain custody arrangement and the agreement becomes a temporary court order. At the time you finalize your divorce the custody arrangement will be part of your judgment and will become a permanent order.

2) If you and the other parent do not agree to a custody arrangement, you will be forced to participate in mediation. A mediator is someone with a social work/psychology background who meets with you simultaneously and tries to help you come to an agreement for custody. If the two of you cannot agree in mediation, then the mediator will make recommendations to the court, and the judge will usually make the recommendations a court order. It is the mediators job to recommend a custody arrangement that will be in the best interest of the child. Depending on how old the child is, the mediator may interview your children or other people who are familiar with your family (teachers, therapists, etc).

Do I need an attorney to file for child custody

No, but an attorney is extremely helpful. An attorney has experience many times over in your exact situation and knows what information the mediator and judge will be looking for when making a custody determination. This gives you a huge advantage in something very important ,your children He/she will prepare the papers you need to submit, and will highlight the type of facts which can make or break your case.