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#513 Child custody

mp3 #513 Who Will Get Custody of Your Children? (mp3 file)

Family Law matters are very complex. Many who try to handle these matters on their own quickly find themselves overwhelmed and out of favor with the courts. Often times costs are cited as the reason for self representation. However, most people with assets and retirement plans stand to lose significant amounts of money, or worse, lose custody of their children if they are not properly represented. Continue here to be referred to an experienced and insured Family Law attorney:


This SmartLaw Message will discuss the following questions:

1. When the other parent and you separate, what happens to your children?

2. Who keeps the children while you work out a plan?

3. What happens if the other parent and you cannot agree on long-term custody?

4. What choices does the judge have in making a custody decision?

5. How does the judge decide who gets sole custody?

6. How does joint custody work?

7. Does the judge consider what your children want?

8. Who will pay to support your children?

9. How will you receive child support payments?

10. If a custody plan doesn't work, can it be changed?

11. What can you do if the other parent won't let you visit

12. Can someone other than parents have custody or visiting the children?

13. How can you find a lawyer to represent you?

First, when the other parent and you separate, what happens to your children?

The best solution is for you and the other parent to agree on who will take care of the children. It could be either of you, or the two of you may want to share the responsibility.

In California, county superior court judges make the final decision. But, in most cases, a judge will approve a custody plan that both parents want. (Juries are never used in child custody cases in California.)

The idea is to make a plan that is best for your children. Remember, children have a hard time adjusting to changes in their lives. Studies of parents and children after divorce show that children cope better with the breakup if both parents play active roles in the children's lives.

Because you probably will be under a great deal of stress, figuring out the best arrangement and making it work will take a lot of patience. One family counseling service suggests that parents make a business-like arrangement for communicating about their children - talking to each other during certain hours only, and sticking strictly to the subject of the children.

If you and the other parent agree on a custody arrangement, you or your lawyer should attach a written copy of your plan to the divorce or separation papers that you eventually file with the court. The agreement should be written in plain language.

Next, who keeps the children while you work out a plan?

If you and the other parent do not agree on a long-term custody arrangement when you separate, then it must be decided which parent gets "primary temporary custody." This parent takes care of the children most of the time, 'until a long-term decision' is made.

Either you or the other parent may ask a judge for temporary custody. Suppose the two of you do not agree. Then, in most cases', a judge will make a decision, after you and the other parent have talked with a mediator or counselor who will try to help you reach an agreement.

Some lawyers advise clients who want long-term custody to start by asking for temporary custody. They believe judges tend to grant long-term custody to the parent who already is caring for the children. But, even if you do not ask for temporary custody, you still may be able to get long-term custody later on.

If you believe that the other parent might move to another state with the children or that you or the children have been threatened in some way, discuss these concerns with your lawyer immediately.

Next, what happens if the other parent and you cannot agree on long-term custody?

If you and the other parent disagree about custody, a superior court judge will decide who takes care of the children. But, the law says you first must' talk with a mediator or counselor, who will try to help you work out a plan. You also can go to a court mediator on your own in some counties - or to a private mediator - before you go to court.

The judge will appoint a court mediator to talk with you. In some counties, you may be charged for part of the mediation costs, if you need several sessions. If you have been the victim of domestic violence, you can ask that you and the other parent meet with the mediator separately.

In many counties, talks with a court mediator are confidential. However, in some counties, the mediator may make a recommendation to the judge. Then, the mediator may be called to testify as a witness, if your custody dispute goes to court. You should discuss this possibility with your lawyer or the mediator before mediation begins.

You and the other parent may try to work out a plan with a private mediator before going to court. Your lawyer may be able to help you find one. Another referral source is the academy of family mediators. It is a good idea to ask about the mediator's experience and training, in addition to the costs.

If you cannot work out a custody agreement through mediation, a judge will listen to both sides and make a decision in a court hearing. First, the judge may appoint an evaluator to prepare a written report in order to learn more about the issues. A parent also may request an evaluation. You should know that parents may be charged for all or part of the evaluation costs - if they can afford to pay.

Custody disputes usually are decided before other divorce disagreements, such as how much support should be paid, and which parent gets the house, car or other possessions. A custody case may be put ahead of many other cases on a court's calendar, too.

Next, what choices does the judge have in making a custody decision? '

California law says that judges must give custody to one or both of the parents, or, in some cases, to another adult, based on the "best interests of the child" or children. It is strictly the judge's discretion on what should be considered the "best interests," but the factors often included are your child's or children's safety, health, economic security and welfare.

In most cases, judges decide between "sole custody" and "joint custody." Sole custody means that one parent has primary responsibility for bringing up the children. Usually, however, the other parent spends some time with the child. Joint custody means that both parents share custody (if both parents ask for joint custody, the judge usually grants it).

In making a custody decision, the court may require a parent to notify the other before changing the child's residence for more than 30 days. In rare cases, when one parent appears to be a threat to the child's welfare or safety, a judge may not give that parent either custody or visitation rights. Or the judge may say that visitation must be supervised.

Next, how does the judge decide who gets sole custody?

A judge will listen to both sides in court, if you and your spouse cannot agree on custody after talking with a mediator. A lawyer can help you present your case. California custody laws have changed a good deal in the past few years. Courts no longer automatically give custody to mothers instead of fathers, even for small children. And, generally, a judge cannot deny custody or visiting rights just because the parents were never married to each other, or because one of them has a physical disability or unconventional lifestyle, religious belief, or sexual preference.

When making a decision about sole custody, a judge will consider which parent can do the better job of caring for the children's needs. If the judge grants sole custody, the other parent is more likely to be given greater visiting rights. A judge also may consider where a child will find the most wholesome and stable home. To decide this, the judge could rely on the mediator's evaluation. The evaluation might tell how close the home is to schools and relatives, and how much supervision and care a parent can give the children. However, the judge's decision is not based on how much money each parent has or earns.

Next, how does joint custody work?

You and the other parent can- have either "joint " legal custody" or "joint physical custody" or both.

Joint legal custody means that parents share the right and responsibility to make important decisions about their children's health, education and welfare. These decisions might include such things as where the children will go to school, or whether they should have braces on their teeth. It also means parents share information about the children with each other. (No matter who has custody, both parents have equal rights to information about their children from schools, doctors and others.)

Joint physical custody means that the children spend time living with each parent on a regular basis. It does not mean that the children must spend equal amounts of time with each parent, although they may do so. The children might spend school days with one parent, and weekends and some vacations with the other. Or, the children might stay with their mother for a week, a month, or longer, then move in with their father for a time. If the parents live near each other, the children may go back and forth between them without an exact schedule. Usually, parents who want joint physical custody work out a routine on their own, or with a mediator's help.

A judge might give both parents joint legal custody, but not joint physical custody. In this case, both parents have equal responsibility for important decisions affecting the children's lives, but the children live mostly with one parent. The parent who did not get physical custody usually will have regular contact with the children. A judge who approves joint physical or joint legal custody may name one parent as the "primary caretaker" and one home as the "primary home" --- for purposes of determining public assistance.

Next, does the judge consider what your children want?

Children's wishes may count in a court's decision. The law says that when a child is "of sufficient age and capacity to reason," a judge must consider what the child wants. The judge decides when a child has reached this stage. And, the judge is required only to consider what the child says, not necessarily to follow it.

Once in a while, a court may decide to appoint a lawyer to represent the child. Then, both parents are charged for the lawyer's fees according to how much they can pay. If they cannot pay part or all of the fees, the court may order the county to pay.

A judge who believes that a custody dispute threatens the interests of the children, may order parents and children to get counseling. If there is a history of domestic violence in the family, each person may be permitted to have separate sessions with a counselor.

Next, who will pay to support your children?

You and the other parent are both responsible for supporting your children.

A judge usually will say how much each of you should pay in child support. Among other things, the decision will be based on how much time each of you spends taking care of the children, how much money each of you makes, any large obligations each of you has, and the expense of raising your children.

You should know that the custody arrangements you make can have an important effect, not only on child support decisions, but also on your right to stay in the family home. The custody arrangements also can affect your right to claim certain tax benefits, such as head-of-household status, dependency exemptions, or the child-care credit, as well as public assistance benefits. You probably should check with your lawyer before reaching a final agreement.

In fact, it is a good idea to talk with a lawyer early on, even if you and your spouse agree about custody arrangements. A lawyer can tell you about your rights and duties concerning your children -- and about property, support and tax matters. A lawyer also will know whether you should file for custody in California or in another state.

Next, how will you receive child support payments?

Since July 1, 1990, the courts in many cases have ordered a parent's employer to pay child support directly to the other parent. This is known as a "wage assignment." If you receive welfare or public assistance, the other parent must make the child support payments through the district attorney's office. The money is used to pay back the state for the public assistance payments you receive.

Next, if a custody plan doesn't work, can it be changed?

Yes. The easiest way to change a custody arrangement is for you and the other parent to come up with a new plan and ask a Judge to make it official.

Judges often approve changes even without a hearing, if you both request them. If you cannot agree on changes, either of you may ask a judge to make the changes. The judge's decision will be based on your children's best interests.

However, you should know that getting the arrangement changed may be difficult if the children are reasonably well cared for and the custody plan has been in effect for some time.

Next, what can you do if the other parent won't let you visit the children?

If the other parent refuses to let you visit the children when the judge said you could, you and your lawyer may ask a Judge for a "contempt" order. This means that the other parent could go to jail for continuing to refuse. And, if the judge finds that the other parent meant to keep you from visiting the children, you may have grounds for getting custody. However, a judge may require that both parents try working things out with the help of a mediator before going to court.

You cannot legally stop making child support payments to pressure the other parent into letting you see the children. And, the other parent cannot legally refuse to let you see them because you have not made support payments on time or at all. Instead, either of you 'can ask the judge to make the other live up to his or her responsibilities. A parent has a right to travel with the children. But in certain cases, a judge may not allow travel without the other parent's ,written consent, or the court's permission. Depending on the circumstances, the judge can change this policy during a hearing.

And, either parent may be charged with a crime for taking the children out of the state, in order to take custody or visitation rights away from the other parent.

If a parent has been violent toward the children or has threatened violence, a judge may order that another adult be present when that parent visits the children.

Next, can someone other than parents have custody or visiting rights?

Yes. California law says that judges first must consider giving custody to one parent or both. But a judge may give custody to another person such as a grandmother, stepfather or friend without the parents' consent. In such a case, the judge would have to believe that giving custody to either parent would be "detrimental" or harmful to the children, and that the children would be better off with someone else.

If custody is given to a person other than a parent, the first choice usually is someone who already has made a good home for the child. A judge may give visiting rights to anyone interested in the child's welfare. The law specifically says that stepparents and grandparents who ask for visiting rights may attend mediation sessions along with parents. If no agreement is reached through mediation, the judge will decide whether stepparents and grandparents may visit the children. However, grandparents will not be given visiting rights against the wishes of both parents.

Next, how can you find a lawyer to represent you?

If you do not know a lawyer, ask a friend, co-worker, employer, or business associate to recommend one. Or call your local bar association for a list of state bar-certified lawyer referral services in your area. You also can look for a lawyer referral service in the-yellow pages of your telephone directory under "attorney referral services," "attorneys" or "lawyers." The person who answers your call can make an appointment for you to see a lawyer. You will pay a small fee for the referral and may talk with the lawyer for about half an hour. Then, if you decide to hire the lawyer, make sure you understand what you will be paying for, how much it will cost, and when you will be expected to pay your bill.

Lawyers who handle custody and divorce cases are called family law attorneys. Some are "certified specialists" in family law. This means that they have met standards for certification set by the state bar of California. However, not all lawyers who have experience and expertise in family law have sought certification.

What if you do not have enough money to pay for legal advice?

You may belong to a "legal insurance" plan that covers the kind of services you need. Or, if your income is very low, you may qualify for free or low-cost legal help. Check the white pages of your telephone directory for a legal services program such as a legal aid society. You can also ask the state bar-certified lawyer referral service if it offers free legal advice for low income people, or if it can direct you to a no-cost legal services organization.

For more information, see the state bar's How Can I Find and Hire the Right Lawyer? pamphlet. You can order this pamphlet or any of the state bar's 22 consumer information pamphlets by calling 888-875-LAWS. (888-875-5297) Pamphlets are also available on the state bar’s website at

The purpose of this message is to provide general information on the law, which is subject to change. If you have a specific legal problem, you may want to consult a lawyer.

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