Laws on Divorces & Children in California

by Elizabeth Rayne
One parent may be awarded sole physical custody.

One parent may be awarded sole physical custody.

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For parents getting a divorce in California, it is essential to understand the rules concerning child custody and support. The parents may avoid going to trial by coming to their own agreement for child custody and support, while the court will step in and make the decision for the parents if they cannot agree. Throughout the process, California law is focused on what is in the best interest of the child, and ensuring that the child has the financial support he needs.

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Parenting Plans and Mediation

In California, parents are encouraged to come up with a parenting plan, also known as a custody and visitation agreement. The agreement typically includes a schedule outlining the times the child spends with each parent, as well as an agreement about which parent will make which decisions for the child. The plan may specify which parent has the child during weekdays, school vacations, holidays and weekends. One parent may be responsible for decisions regarding health care, schooling and religion, or the parents may decide they can make decisions together. The parenting plan is finalized once it is signed by both parents and approved by the court. If parents cannot agree to a plan, the court will require the parents to attend mediation, where a neutral third party will help the parents come to an agreement. If mediation is not successful, the custody arrangement will be decided by the court, following a custody trial.

Types of Custody

California law differentiates between legal and physical custody. Legal custody refers to which parent makes decisions for the child. One parent may have sole legal custody, meaning that only one parent makes decisions for the child, or the parents may share joint legal custody. On the other hand, physical custody refers to where the child lives on a day-to-day basis. The parents may share joint physical custody, meaning the child spends a significant amount of time with both parents. When one parent has sole physical custody, the other parent is usually granted visitation.

Custody Determinations

Like all states, California courts are primarily concerned with what is in the best interest of the child when making custody determinations. State law presumes that it is in the child's best interest to have continual and frequent contact with both parents. Factors the court may consider when contemplating awarding custody to one parent versus both include the health and well-being of the child, parental alcohol and drug use, and any history of domestic abuse by the parents or anyone the parents may be living with. If the court determines that a child is of sufficient age and maturity to understand the proceedings, the court may consider the child's wishes as to which parent he wants to live with.

Child Support

In California, either parent may request child support; the court will use the income shares model to determine the amount of support awarded. This formula calculates child support based on the total income that would've been available to the child had his parents remained together, based on the understanding that both parents are responsible for providing financial support. The court will consider a number of factors, including the income of each parent, the amount of time the child spends with each parent and child care costs.

Modification

If circumstances have substantially changed since the original custody or child support order was established, either parent may petition the court for modification. Circumstances that might lead to a change in custody include one parent moving away, the child requiring special education, or the changing medical needs of the child or parents. Child support may be changed if the income of either parent significantly changes, or if the child starts spending a lot more time with one parent.