California Family Code section 3020(a) provides: "The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children…; and (b) The Legislature finds and declares thatit is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy…."
Child custody and visitation are often highly contested divorce issues. In California, the courts primary concern is the best interests of the child. Further, the legislature, when crafting the California Family Code, have codified that it is generally in the best interests of the child to have regular and continuing contact with both parents. When the dissolution is contentions, one of the first steps is to obtain orders related to custody and visitation. In order for a California court to make such orders, the court must find that California is the home state of the children. In order to qualify as the home state, the children must have lived one or both of the parents for at least six months immediately before the child custody proceeding.
There are two types of custody: legal and physical. Legal custody concerns the parents' rights and responsibilities to make decisions relating to the children's health, education, and welfare. The court can award the parties joint legal custody, which will require that both parties agree on those issues affecting the health, education, and welfare of the children. In the alternative, the court can award one parent sole legal custody, thereby excluding the other parent from all important decision making.
Physical custody refers to the child's primary residence. In many divorces, the courts will award joint physical custody, which simply means the child is generally spending substantial periods of time with both parents. Alternatively, the court can award primary physical custody to one parent, with reasonable visitation to the other.
When making orders concerning physical custody, legal custody, and visitation, the court's primary concern is to assure the health, safety, and welfare of the children. In determining what is in the best interests of the child, the court will consider multiple factors. For instance, the court will consider allegations of abuse by a parent against the child or the other parent. Second, the court will consider the nature and amount of contact that the parents have with the children, both during the marriage and post-separation. The court will also consider other factors such as the parties' employment status, any history of substance abuse, and possibly the child's parental preferences. Finally, when deciding which parent will be awarded custody, the court may also consider which parent is more likely to allow the child frequent and continuing contact with the other parent. If one parent does not let the other parent see the child, or in the judgment of the court, makes contact with the child difficult without good cause, the court will likely award custody to the parent who actually fosters the child's relationship with the other parent.
Child custody and visitation matters are often the most complex and contentious issues you will face in a divorce. If you are involved in a child custody dispute, it is imperative that you identify and address the most critical issues from the outset as courts are resistant to changing existing custody and visitation orders once made.
Our office is located in Santa Clarita, serving communities in Saugus, Canyon Country, Valencia, Newhall, and more. If you have any questions regarding divorce, spousal support, child support, or questions regarding child custody and visitation matters, please call Eric Martinelli with the Martinelli Law Group for a free consultation.