Child custody disputes are most commonly associated with divorce proceedings. However, child custody issues can also arise in paternity, juvenile delinquency, and guardianship matters as well as terminations of parental rights. While receiving a custody award includes physical control of a child, a person also receives certain legal rights, privileges, and powers.
When judges make decisions about child custody, the standard they apply follows from the best interests of the child. In other words, they decide the outcome or result that would most benefit the child's well-being. As a result, custody rulings are individualized and fact-specific.
California's Child Custody Standards and Laws
Child custody cases follow a legal standard from the California Family Code Sections 3020 to 3032. These sections point to the "health, safety, and welfare of children" as the court's main concern when making custody decisions.
From a public policy perspective, Section 3020 also gives the state responsibility of ensuring that children have "frequent and continuing contact with both parents" once their parents' marriage or partnership has ended. Similarly, the court's decisions must "encourage parents to share the rights and responsibilities of child-rearing." The only exceptions to these standards occur when their applications would not be in the child's best interests.
What exactly does the best interests of the child standard mean? Generally, a judge will study the facts and circumstances of the case and decide upon the custody arrangement that would best meet the child's physical, emotional, and psychological needs. The best-interests standard presumes that having contact with both parents is ideal, where a former standard presumed maternal custody was best.
California presumes that a joint custody arrangement is in the best interest of the child unless one parent can show evidence that joint custody would harm the child in some way.
Joint vs. Sole Custody
Arrangement for physical custody of a child establishes where the child will live, who will care for the child, and the amount of time the child will spend with each parent. The two general categories of custody arrangements are sole, or primary, physical custody and joint, or shared, physical custody. With a sole custody court order, the child will live more with one parent than the other.
The second option is a joint custody court order. This order gives both parents physical and legal custody of the child. Joint custody doesn't mean that a child will spend exactly 50 percent of the time with one parent and 50 percent with the other. The child will likely spend more time with one parent, since an even division of time may be difficult to achieve.
When a child spends more than 50 percent of the time with one parent, that parent is usually called the primary custodial parent. Joint custody can take many forms depending on the parents' availability and needs of the child.
The Custody Process in Los Angeles
Getting custody of a child in Los Angeles will depend on whether you have a marriage or domestic partnership with the other parent. If so, you can ask for custody and visitation orders during the following proceedings:
• Divorce, separation, or termination of a domestic partnership
• Temporary restraining order, TRO, due to a domestic violence incident between the parents
• Child Support Services Department case
• Petition for support and custody of a minor child
If you and the child's other parent never had a formal relationship, legally speaking, you can still get a custody and visitation order in the following proceedings:
• TRO issued due to domestic violence
• Paternity case, a case brought to establish the child's father
• Petition for custody and support of a minor child
• Child Support Services Department case
You'll need to complete Form FL-260, Petition for Custody and Support of Minor Children, to get a custody and visitation order if you don't have any other eligible proceeding, such as a divorce. The form will ask you to describe the legal and physical custody arrangement you want and a proposed visitation schedule.
As part of this custody and support agreement, the court must order child support, so you'll need to include information about your income. You can always ask for a child support modification to the original support order later.
Cooperative Parenting Agreements and Mediation
Parents can always reach their own custody agreements without the court's intervention as long as both parents can agree on those terms. However, informal custody agreements are legally enforceable only if they are in writing, signed by a judge as part of a court order, and signed by both parents. If parents can't agree on a custody arrangement, California law requires them to try to resolve their differences in court-ordered mediation.
The Conciliation Court can connect you with a mediator if you can't agree on custody with your spouse. You can call 213-974-5524 or go online to set up a mediation appointment, which usually lasts 1 1/2 to 2 hours. In Los Angeles County, mediation services are free. Before you attend, you'll need to complete an online parent orientation.
During these mediation sessions, an impartial third party will help you craft a custody agreement that's best for your child yet also allows the child to spend time with both parents. A mediator can also help both parents deal with any anger or frustration with one another. If you still can't reach an agreement in mediation, a judge will decide on a custody arrangement at a contested custody hearing.
Factors Judges Consider in a Custody Determination
The courts take a case-specific approach to deciding the best interest of the child in custody cases. Generally speaking, however, the judge will apply the best interests of the child standard and consider relevant evidence, focusing on the following factors:
• Age and health of the child
• Relationships between the child and each parent
• Ability and desire for each parent to take care of the child
• Child's ties to the community
• Parents' history of domestic violence or substance abuse, where applicable
• Remarriage and new relationships of both parents
The fact that a stepparent enters the situation does not by itself affect custody, but a stepparent's introduction can change the arrangement if that stepparent's involvement negatively impacts the child and the relationship with either parent.
What's in a Parenting and Custody Agreement?
Parents who plan on creating their own parenting agreement should consult a family law attorney for guidance on details of the agreement. For parents who seek a custody order in court, the judge will already know what the order must include to be complete, but an attorney can help advocate for your desired custody arrangement. A parenting agreement or custody order will usually include the following elements:
• How the child will spend time with each parent
• What plans will look like for holidays, vacations, and transportation to and from each parent's home
• Where pickup and dropoff locations will take place
• Where the child will attend school
• What religion the child will practice
• Who will offer the child medical care and who the doctor will be
• Whether one parent or both parents will make long-term decisions about the child's welfare, education, and health
Disputes over child custody may not always be easy matters in life. However, if parents can reach an agreement either on their own or through mediation, the process can go more smoothly and won't require the court system. Regardless of whether your custody case enters the court system, you might benefit from the counsel of an experienced child custody attorney to make sure you receive the custody order that's best for you and your child.