Child custody and support are among the most critical issues of concern for divorcing couples in California. Determining these issues can be hard especially when the court has to establish parental rights and responsibilities.
At San Diego Divorce Attorney, we may be able to quicken this process making it less stressful. If you and your spouse find it hard to reach an agreement on these issues, reach out for our help. Our attorneys have a deep understanding of California child custody and support laws and will advise you on what to do and what not do. We help San Diego couples who seek to understand all matters regarding divorce. This article focuses on everything you need to know on child custody and support so that you know how to go about each aspect.
When parents are undergoing legal separation or divorce, they will have to decide who gets to stay which the children. Child custody is the rights and responsibilities demonstrated to a child by a parent. It includes both physical and legal custody. Physical custody refers to who will live with the child while legal custody entails who has the duty over the well-being of the child, such as making important decisions regarding the education and health of the child.
You and your spouse can make arrangements regarding child custody privately, or you may have the matter settled in court if you have problems or disagreements. It is true that settling disputes of child custody may be stressful and overwhelming for both of you and sometimes the child in question. Irrespective of how you feel, the child's best interests are always given priority when deciding custody.
Factors Used to Determine Child Custody
Where you cannot agree, the court will determine both the legal and physical custody of the child. Though it's not necessary that one parent gets both physical and legal custody, it sometimes happens. There are basic factors that the court considers when determining legal and physical custody. They include
The child/ children's age. For instance, an infant will most likely need to live with his or her mother.
The presence or absence of emotional bonds between each parent and the child
The child/children's health condition. For instance, you will only be granted physical custody of a disabled or sick child if you are capable of taking care of him/her.
The physical, emotional, and financial ability of both parents to provide various basic necessities for the child
Where the child's school, home, friends, extended family, and relatives are currently located
Unlike in other states, you will not automatically get custody in California simply because you are the mother to the child, or because you have the same gender as the child, or due to your high or low level of income. In addition, California state laws do not consider sexual orientation or religious beliefs as contributing factors when determining custody.
While the court considers a wide range of factors before granting custody, the most crucial consideration is the child's best interests. This means that even if both parents disagree on a particular decision made by the court, the court will go ahead and enforce the judgment as long as it's acting in the best interest of the child.
Types of Child Custody
As we mentioned before, child custody is categorized into two main types, physical and legal custody. These two categories are further divided into other types, as follows:
Joint custody - the parents share legal and physical custody.
Sole physical custody - here, the child stays with only one parent. The non-custodial parent may be granted visitation rights. This form of child custody is also referred to as full custody.
Joint physical custody - in this type of custody, every parent has a significant period of having physical custody.
Joint legal custody - this form of child custody has both parents sharing the rights and responsibilities of making decisions regarding the education, health, and the well-being of their child.
Sole legal custody - here, it's only one parent who is given the liberty of making decisions that touch the education, health, and the well-being of the child.
Third Person Custody
In other cases, though rare, the court can rule that it's not in the best interests of the child for either of the parents to assume custody. In this case, it's right for a close friend or a relative to volunteer to have the child live with him/her. Before the relative/ friend is granted custody, the court will review their qualifications and decide whether or not they are fit. Often, in cases of third-party custody, it's a grandparent who is granted custody, but any other person may qualify as well.
In case a third person is granted custody, it is most likely that each parent will be granted visitation rights. Also, they both may have to provide child support.
The Process of Acquiring Custody
If you can't agree with your spouse on custody, one of you will file for a child custody order. This may occur during legal separation or divorce. You can request for child custody on the grounds of domestic violence caused by the other parent or due to a dispute over paternity issues. In other cases, a request for child custody may be filed by a government agency or an agency that deals with child support.
You have to complete certain legal forms and have them reviewed before filing. A date is then set to conduct a hearing that determines whether the request should be granted. Your spouse must be served with the request papers at the minimum 16 days to the court hearing.
If the judge's decision favors you, he/she will sign and approve the order. Without a signature from the judge, you cannot have legal custody, neither will you get a legally enforceable parenting plan.
Parenting plans are easy to formulate where you and your spouse can agree on visitation rights or after the judge has decided on who is granted physical custody. If you can develop a parenting plan on your own, you will need to complete certain forms and sign them. Your attorney then reviews the forms before the judge can approve and sign them into a plan. You then submit the plan to the superior clerk of the court.
If you have disagreements such that you cannot create an enforceable parenting plan, the court will intervene and create one for you.
Parenting plans vary from one case to another. However, all of them will contain at least the following essential elements:
The person that will get physical custody (the place the child/children will live).
A schedule outlining the rights of visitation of the parent that doesn’t get custody so that he/she gets to have parenting time.
The place the child/children will spend birthdays, holidays, vacations, or other special events
Who gets the child's legal custody. This entails making important decisions on behalf of the child/children in their growing up.
Ways in which the child/children will relate with relatives, friends, and other members of the family beside their parents.
A process of how the parenting plan may be adjusted so that you don't have to return to court to get a new plan every time you make minor but necessary changes
Note that both of you may be able to agree on the elements of the parenting plan, but it still will not be valid until the court reviews and approves it. It is the court's preference that you agree on a plan with the other parent, but if that is not possible, they will create one for you.
Additionally, violating a parenting plan that has been imposed by the court is an offense. You can be subjected to legal consequences if you flaunt a court-imposed plan. If, for instance, you deny your ex-spouse his/her right to visit the child, you will be violating the parental plan. On the other hand, if your ex-spouse is allowed visitation rights then keep bringing the child home late after spending time with him/her, you can file for a complaint and get the court to resolve the matter.
This refers to regular payments a non-custodial parent makes to cover financial support and care of his or her child/children. When one parent is granted sole custody, the other parent is normally required to provide child support. The court sees it in the child's best interest for both parents to have the obligation of supporting their child through growth. The support is paid to the custodial parent then the parent combines it with his or her income to provide for the child.
In cases of joint custody, there still will be one parent paying child support or both may be ordered to do so. In many cases, it is the parent with a higher income that provides child support, but there are exceptional cases where the vice verse is true. Generally, a child support order is included in a paternity judgment or divorce decree.
The aim of a child support order as per the laws of California is to make sure that a child is not denied reasonable care by both parents, which includes food, medical care, shelter, clothing, and at the minimum, high school education.
Determining Child Support
Several factors are considered when deciding who among the couples will provide child support and what amount it will be. Even though the law offers multiple methods of determining child support, the court has the right to diverge from these methods as long as it gives its reasons for doing so. Also, any deviation the court takes has to be just and in the child's best interests.
In California, both parents have to contribute to providing support for their child. If you are the non-custodial parent, you will pay the support payments and your ex-spouse, who was granted custody, will receive and apportion it accordingly. Your level of income and that of your ex-spouse will be put into consideration while determining who will pay child support as well as the amount they will pay.
The state calculates child support using computerized formulas. In computing, the computer system assumes the data fed into its program to be correct even if it isn't. However, if you can provide proof that the child support amount the computer is recommending is inappropriate, you can file a petition for it to be adjusted.
Additionally, if you can agree with your ex-spouse on an alternative plan of providing child support, and the plan is reviewed and approved by the court, you can as well use it.
Otherwise, the significant factors used in calculating child support amount include
How many children need support
The net disposable earnings of both parents
The quantity of parenting time that every one of the parents spends with their child
The age of the child/ children needing support
Child care and education needs
The expenses used in maintaining the home where the child lives
The special needs of the child if any
Note that in case there is more than one child who needs child support, the youngest child will get full support while for every additional child, the amount is slightly lowered.
Lastly, keep in mind that alongside child support, you also have to provide health insurance for the child (or rather, the health insurance can be part of the child support). However, this is only applicable where you can obtain the insurance at a realistic charge (5% of gross income) or no cost whatsoever. Providing health insurance can lower your payment of child support.
How Long Does Child Support Last?
In California, you will continue paying child support until the child/children are 18 years of age. This is typically the legal age to transition into adulthood. However, if the child is already 18 years but hasn’t graduated high school and is still living with the custodial parent, you will continue providing support until the child reaches 19. In case the child passes on, joins the United States Armed Forces, or gets married, child support ends.
The Court Process of Child Support
Just like in child custody, petitioning for child support will, in many cases, start when one files for a paternity case, when couples are divorcing, or when the Department of Child Support Service demands.
To start the process, you have to file an order requesting child support. You also must state why you are requesting the support. Then, at some point, the court will need you and your spouse to declare your income levels and expenses.
After the filing, your spouse is then served with the request. He or she has to respond to the request within a specified period. The deadlines vary depending on how the serving was done. However, they cannot be more than a few weeks long. Thus, it is essential to have a good attorney who will help you respond as quickly as possible (if you are on the receiving end).
Eventually, a hearing will be conducted to determine child support. You and your spouse must be present at the hearing where you will testify. Since family laws can be complicated, you should go to the hearing with an experienced attorney rather than appearing alone. The attorney may be able to contest any decision that affects you negatively.
Though, you can still seek the child support order to be modified even after the court's decision at the hearing. The modification could depend on aspects like income changes, increasing or reducing the amount of parenting time, etc.
If you believe you can build a solid case when you file for the modification of the order, you should file it as soon as possible. This is because filing takes time as well as waiting on the legal system. Before the modification can be looked into, the current support order will still be in use. This means that the modified order (if you get one), will take effect from the date it was initiated.
Often, most parents assume that child support is tied to child custody at 100%. This could be right in most cases but not to all cases. If you have a disagreement with your spouse on child custody or support, you, with the help of your attorneys, can obtain a custody or support order from the court, which will help you clear any misunderstandings and keep you in check throughout your parenting time.
Find a Child Custody and Support Attorney Near Me
If you need to understand more on child custody and support, call our experienced San Diego divorce lawyer at 858-529-5150. Also, reach out to us if you need to go to court to seek custody of your child or to determine child support after a divorce. We have experienced attorneys who will prepare, support, and help you to get a new custody or support order, or have the existing ones modified. We serve residents of San Diego, CA dealing with child-related issues in the event of a divorce in line with the provisions of the California family laws.