At Sachdev Legal Group, APC, our decades of combined experience allow us to understand our clients’ most common questions. We prepared concise answers that list the key considerations in child custody cases.
We hope our California child custody guide is helpful.
If your questions require a more detailed explanation, reach out to our San Diego law office today.
Do Courts Have a Preference for Joint or Sole Custody?
The state of California recognizes a child’s right to “frequent and continuing contact” with both parents. All California custody orders should be based on what’s in the best interest of the child or children. But California law states no explicit presumption or preference for or against any custody types.
Courts often award joint custody because the parents agree it’s in the best interest of the children. When courts find joint custody not to be in the child’s best interest, they can award custody to either parent. The parent not awarded custody gets visitation that allows them frequent and continuing contact with the child.
When a parent is deemed unfit, such as in cases where the court finds frequent and habitual illegal use of controlled substances or frequent and habitual use of alcohol constitutes a detriment to the child. In cases involving domestic violence, a court can determine that an award of custody to the abusive parent is detrimental to the child. The parent culpable of domestic abuse must complete certain steps to regain custody.
Do Courts Consider a Child’s Age in California Child Custody Cases?
Yes. A child’s age is one factor the court considers in determining the best interest of the child. Also, if the court finds that a child is of an age and capacity to reason such that the child can form an intelligent preference as to custody, the court can consider the child’s preference. The court has the discretion to give the child’s preference due weight.
Can My Child Testify in Court About Their Child Custody Preference?
If a child is 14 years of age or older, California law states the child shall be permitted to address the court regarding custody, if the child wishes to do so. The court can refuse to allow the child to address the issues if it is not in the best interest of the child to allow their testimony.
What Weighs in a Parent’s Favor in California Child Custody Cases?
Each factor considered by California courts can weigh in a parent’s favor or against them.
Some factors that can weigh in a parent’s favor include:
- Allowing frequent and continuing contact between the child and the other parent
- Providing the child a wholesome and stable environment
- Ensuring continuity of the child’s home, school, and community involvement
- Looking after the health, safety, and welfare of the child
The responsible exercise of parental authority weighs in a parent’s favor. Demonstrating a willingness and ability to communicate with the child’s other parent or guardian is helpful, too.
What Weighs Against a Parent Getting Child Custody in California?
California courts can consider any evidence relevant to the best interest of the child in deciding custody disputes. Courts may implement protective or restrictive measures if certain circumstances exist.
In deciding custody, courts will consider the history of abuse by any person seeking custody against:
- A child with whom they had a parental relationship or any child in their care
- The other parent
- A parent, current spouse, cohabitant, or any other person with whom the person seeking custody had a dating relationship.
In short, any history of domestic abuse weighs against a parent.
Frequent, habitual, and continual illegal use of controlled substances or alcohol also weighs against parental fitness. Any parental history of neglect or child abuse can also weigh against.
What Can’t Courts Consider When Deciding Child Custody in California?
There are some things courts will not consider when deciding child custody in California. In determining the best interest of the child, California courts cannot consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative. A parent or guardian’s immigration status, race, religion, or disability status cannot form the basis for a custody decision.
What If the Child’s Other Parent Lies During Our Custody Hearing?
Anyone who makes a knowingly false statement under oath is subject to penalties for perjury. In custody cases, due to the intimate relationships and intense dynamics, parents often make scathing claims. California courts sometimes order child custody evaluations in cases involving salacious accusations of:
- Child abuse or neglect
- Mental health or psychological issues
- Frequent, habitual, or continual substance use or abuse
Custody evaluators can also be engaged when there’s a dispute as to whether a potential major decision is in the best interest of the child. Often, custody evaluators will provide a recommendation on a proposed relocation or enrollment in a specific academic program.
Can My Social Media Posts Be Used Against Me In My Child Custody Case?
Maybe. Generally, your own statements can be used against you in any civil case. If your social media posts show evidence of binge drinking or drug use, especially if your child was in your custody at the time, they could reflect negatively on your parental fitness.
Refrain from making any comments derogating or demeaning the child’s other parent on social media. Also unacceptable: harassing posts or interacting with the other parent in an abusive way online.
Can a Child Custody or Visitation Order Be Changed?
Yes. Until a child reaches the age of majority, a child custody or visitation order can be changed whenever the change is “necessary and proper” and in the best interest of the child. Parents cannot restrict the right to change child custody orders by agreement. Any agreement between parents to not modify child custody is an unenforceable deal.
What is the Process to Change a Child Custody or Visitation Order?
To change a child custody or visitation order, at least one parent has to file a motion with the court. The parent asking the court to change the order has to show why the change is necessary and proper and in the best interest of the children.
The parent seeking a change in custody can propose a specific, detailed plan for the court to consider. Before the issue of modifying child custody goes before the judge, the parents may be ordered to mediate. At the mediation or trial, the other parent can oppose any change or can suggest a change they would like the court to consider.
What Are the Grounds for Changing a Child Custody or Visitation Order?
If a parent requests only a change in visitation, they need only show the change is in the best interest of the child. Visitation usually refers to the physical schedule of time a parent has with their child.
If a parent wishes to change child custody, they must show that a significant change of circumstances occurred since the entry of the child custody order they’re asking the court to change. The law recognizes that stability and continuity are in the best interest of children and disfavors frequent changes in custody.
Keep in mind that the court decides a request to change child custody based on the best interest of the child and not the convenience of the parents.