Custody refers to both legal custody and physical custody. Legal custody is the ability to make decisions for the child around issues of school, health, and wellbeing. Physical custody refers to which parent the child will be living with.
In California the courts use “best interest of the child” standard for making determinations for custody and visitation. California Family Code §3020. What does that mean? Several factors are considered when a court decides what custody arrangement is in the best interest of the child.
- Status Quo – Which parent has the child been living with? It’s not in a child’s best interest to have their daily routine upended. If the child has been living with just one parent for a significant amount of time, it’s most likely the court will give this parent sold physical custody. But, the other parent can still work up to a greater timeshare albeit in slow steps depending on the age of the child and other factors.
- Sharing Parent – Which parent is most likely to share information with the other parent? The court will look upon negatively a parent who “gatekeeps.” That is, a parent who controls how much contact the other parent has to the child. Does the parent share information freely? Does that parent make the child available for phone calls? This is they type of sharing a court will consider favorably.
- Other Factors – The court will also consider whether either parent has a substance abuse problem, or an anger issue, or whether there has been any domestic violence. Any of these factors will most likely leave that parent with professionally supervised visits until they’ve proven to the court that they’ve gotten the help they need to overcome any deficiency, thus making them safe for the child to be with.
Of course, parents can always come to their own agreement for custody and visitation. If both parents are committed to the well-being of the child, then it’s wise to make your own parenting plan that you both agree to rather than the court getting involved.
The court will also require mediation to help come to an agreement that works for all parties.
Modification of Custody/timeshare
California Family Code §3022 allows for a parent to file a request for a change in the current custody and timeshare order. However, there must be a “significant change in circumstances” in order to ask for a modification.
What constitutes a “change in circumstances?” The following are some examples:
- Your work schedule has changed in such a way that you won’t be able to exercise your current timeshare with the child;
- Or, conversely, your work schedule has changed in a way that would allow you more time with the child;
- One parent is not being responsible in making sure the child is getting to school on time, or completing their homework;
- A non-custodial parent moves closer to the child.
These are just a few examples of situations where requesting a modification in the current order would be allowable.
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