Common Reasons for Losing Your Child Custody Case

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmThere are a number of reasons that could lead you to lose the sole legal or physical custody of your child as directed by a California court. In California, when starting out, both parents have joint custody rights of the child. However, when such an order is contested, you have to provide solid evidence-backed facts and reasons to demonstrate your capabilities of being the “primary care giver” and being involved in the growing up of your child.

Acting without discretion could lead to a loss of custody rights 

A judge in a California court would see whether your involvement in the rearing of your child has a positive impact on him or her. If you are someone, who is an abuser of some kind, someone who rants or loses his temper quickly, someone who doesn’t demonstrate enough interest or inclination to take the responsibility of your child, gets into an abusive relationship before the divorce is finalized or has a new partner with shady history, all these could be used to contest your custody rights or even limit your parenting time to supervised visitation or complete withdrawal of your visitation rights.

You must also demonstrate your abilities to cooperate and work in tandem with the other parent of the child in order to provide the best possible care to the child. You must set aside your personal differences and take active part in your child’s daily life like taking him to scholl, speaking to his teacher’s, taking him to his games, spending quality time with him, going for holiday breaks, even if it means with your ex-partner for the welfare of your child and showing an constantly showing an active interest towards his growth. Also don’t act out in front of the judges, the child attorney, his teachers, playmates, other parents of his friends and stop ranting and fighting with your partner always. Try not to have casual flings in front of your children so that he feels neglected.

Some very specific reasons that could contribute to your loss 

  1. Physical or sexual abuse: One of the most common reasons for losing child custody is to physically, emotionally or sexually abuse or hurt your child. If your other partner can provide enough evidence like a paper trail, circumstantial evidence and witness based evidence; you could lose your parenting rights if the judge finds your behavior and attitude towards your child inappropriate.
  2. Child abduction: Family Code 3048 of the California laws define it. Your actions may be deemed dangerous if you try to sneak the child past the other parent and take hime from one county to another or out of America. He can’t be moved as per your whims. You will have to take legal permission for doing so and provide sound and valid reasons. 

Making false allegations of abuse against the other parent, showing an affinity for substance abuse, trying to interfere with the parenting rights of the other parent could also lead to loss of your custody rights or visitation rights. Take care to act with discretion and don’t ignore the needs of your child.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Issues To Know Regarding California Child Custody and Visitation

Posted by: Gerald A. Maggio, Esq.

orange county child custody attorneys; The Maggio Law FirmThere are a number of issues that may crop up in child custody and visitation cases not only in California but also other places. Awareness of such issues or how to deal with them will make it a lot easier for any parent to tackle these problems that are bound to come up when a child custody case is being heard by the family law court.

The various issues that can come up range from the child’s preferences to counseling, criminal convictions to the threat of abducting or actually abducting the child, interfering with child parent relation and so on.

Child’s preferences

Under section 3042 of the California Family Code, the preferences of the child regarding decisions about custody are given much consideration.  But the Family Court takes into consideration the maturity of the child, any influencing from the parents, and possible alienation of one parent by the other parent before acting on the child’s preferences.

Counseling

The court evokes section 3190 of the California Family Code to ask for mandatory counseling of the child involved in a child custody case. It is up to the family law judge to ask both or either of the parents to accompany the child to the counseling sessions. The court may have statutory reasons to get the parents counseled as well, either together or separately. Any disputes between the parents have to be resolved for the best interests of the child. Counseling can last to up to a year.

Criminal convictions

Criminal convictions of either parent in crimes related to child abuse will have a significant influence in the outcome of a child custody and visitation case. The guilty parent will most certainly not get the custody, either sole or supervised, of the child in question unless it can be proven that the child will not come to any harm.

Any other criminal offence other than child abuse such as substance abuse or use of violence, will elicit the same response from the family court. The criminal history of the offender does not matter as much as the details of the present case. The matter of sole custody is out of the question but joint legal and physical custody may be granted.

Consult a practicing lawyer experienced in California family law. Child custody cases need strategizing and a professional lawyer will successfully guide you through this.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Legal and Physical Custody Under California Family Law

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce attorneys; The Maggio Law FirmCalifornia child custody laws allow for both joint and sole physical and legal custody of the child. Both parents can seek either of these custodies of their child. The family law judge hearing a child custody case cannot give preference to a parent depending on the gender of the parent or the child. Giving arbitrary sole custody is also not allowed. All decisions need to be based on the law and other related facts.

Joint physical custody

It means both parents have equal control and rights over the child. All decisions regarding the child are taken jointly. Generally speaking, the parenting time should be divided equally but this is not an absolute requirement. It can be 60-40 also as long as the child gets to spend quality time with each parent.

Joint legal custody

It means the parents have no other option but to take decisions jointly regarding the health, education, safety and welfare of the child. It includes religious and any extracurricular activities of the child. It is like a mandate for communicating and co-parenting. One parent cannot take any decision about the child without involving or getting the consent from the other parent.

But sometimes the family law judge can let one parent have the sole right to take decisions for the child regarding certain issues. Form 341(E) of the California judicial council states all rules regarding joint legal custody.

Sole physical custody

It means that only one parent has exclusive right over the custody of the child. He or she (the mother or the father) is the primary caretaker and custodial of the child. But it does not mean that the non-custodial parent does not get any parenting time or visitation rights. If one parent gets sole physical custody the other parent gets visitation.

Sole legal custody

It gives a parent the sole right to take decisions regarding the child’s education, health and welfare. But the parent with sole legal custody does not hold exclusive rights over the child. The parent with visitation rights has supervisory rights and responsibilities when he or she is with the child.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Tips for Fathers Looking for Custody of their Child

Posted by: Gerald A. Maggio, Esq.

family law lawyers in orange county; The Maggio Law FirmThe fact that there are more working mothers now than ever, has promoted a significant increase in the child custody battles in most divorce cases. While most fathers might believe that a court of law usually favors the mother in deciding the final settlement of custody, the fact is that the primary concern of judge is to announce a verdict that ensures the ‘best interests of a child’.  Fathers who actively devote time for a meaningful and healthy upbringing of their child should seek to enforce their parental rights.  Read on for a few tips that might come in handy if you are a dedicated father battling for the custody of your child.

Parenting time 

The first major consideration that you need to make is how much time you will be able to devote to your kids. Now whether you wish to obtain the full custody of your child, or an aggressive visitation, it is very important to outline your goals and determine how you aim to achieve them. You need to able to balance out your professional life with the time you wish to spend with your child. Much of this would depend upon the age and maturity of your kids. For example, a five year old will require you to be available for him for a major part of his waking hours. However, if you have teenage kids, you can go for joint custody that allows you spend the evenings and weekends with them. 

Parental decisions 

A joint custody implies that both the parents are required to be actively responsible for making vital life decisions such as education, safety, health and welfare for their children. Unless your case involves a grave parental conflict such as domestic violence, addiction of some nature, child abuse or the like, it is always advisable to go for joint custody with the other partner. The state laws of California do not assign any special privileges to the mother if she has been proved to be incapable of co parenting the kid, since it apparently goes against the concept of ‘best interests of the child’.

If you as a father are determined to fight for your rights to custody, you must hire an attorney who has experience in child custody cases and is well versed in the legal strategies required for you to effectively put your point across in the court of law.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

How A Physical Handicap May Impact Your Custody Hearing

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmWhen it comes to custody matters in California divorce law, there are a number of common situations that might take place. These may be regarding the working status of either of the two parents, their income, and their capability to take care of the child. There are many factors that are taken into consideration by the California family court when awarding custody. This post is about one such factor which though rare, is worth knowing about.

Physical handicap is a factor that the California family court can take into consideration when awarding custody. As such, for those to whom this is applicable, should know everything about this factor and the effect it might have on the ruling.

When talking about physical handicap, we are talking about the physical handicap of a parent, of a child, or of a sibling.

Parent with a handicap

The California court does not base its decision of custody solely on the fact that a parent is physically handicapped. It, in fact, looks to the family as a whole to see how the handicap affects the entire family. The judge looks into the matter as whether or not the handicap affects the child or their best interests. The court does not consider handicap to be a hindrance when ruling. The decision is based more on the degree to which a parent with a handicap can care for the child.

Sibling with a handicap

Sometimes the sibling’s handicap plays a major role in determining custody. For instance, if one of the siblings has rage issues and is overcome by bouts of rages which can lead them to harm the other sibling; then custody of the two siblings could be split. The disability of one of the siblings might take up so much time of the parent that they might be unable to take care of the healthy child. This would be another case where the custody might be split. As always the answer depends on where the child’s best interests are served.

Child with a handicap

When the child who is the subject of the custody dispute is handicapped, then the court looks into matters that affect the child’s best interests. The court identifies the child’s handicap and identifies the amount of care needed by the child, and parent’s ability to offer and take care of the child’s emotional, physical, medical, and financial needs.

Custody issues are not a black and white area. There are many complexities and nuances that come into play. Each case comes with its own unique circumstances and rulings are given out likewise.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

What To Know About Child Custody Mediation In California

Posted by: Gerald A. Maggio, Esq.

orange county child custody attorneys; The Maggio Law FirmGetting a divorce can have an adverse effect on your kid(s) if the situation is not taken care of properly. Child custody mediation gives you an opportunity to resolve any issues you might be having while drawing up a parenting plan for your child. A mediator’s role is to ensure that things are smooth between both parties without having a bad effect on the child. If the parents are ready with a plan, a mediator makes sure that the plan is presented to the court in a written format which can be used for custody and visiting order.

Developing plans

A parenting plan or a custody and visitation agreement is a written agreement stating the amount of time a child will spend with each parent. The parenting plan turns into a court order when it gets signed by both parents. If you are heading for a divorce or have already decided on one, and if you have a child, do take the time out to talk to your partner about the best possible parenting plan. Things like love and care, health, education and rest should be the top priorities for your child.

Plans for children of different ages

Children of different ages react differently to divorce and separation. Some can be too young (<5 years) to fully comprehend the effect. It can lead to sudden emotional outbursts or might fetch no reaction at all. Similarly, for children who are old enough to understand what a divorce means will take it differently. There is no hard and fast rule that you can follow. The only good way to go about this is to make sure your plan does not neglect your child’s need. If they are big, talk to them and tell them your plans. And if possible, give them time to cope up with the entire situation.

California child custody laws

There are different custody laws for different states and California is no different. To summarize, basically what happens is that a child custody attorney will sit down with you and your partner. The attorney will evaluate the case and focus on facts like family history, child abuse or neglect and your relationship with your child. Things like health, safety, education and welfare is considered and after a thorough investigation a decision will be taken.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Establishing Parentage in the Separation of Unmarried Parents

Posted by: Gerald A. Maggio, Esq.

orange county child custody attorneys; The Maggio Law FirmIn custody cases involving married parties, wherein a couple was married when their child was born, the court of law automatically assumes that the wife is the child’s mother and the husband his father. However, in the event that a child was born without his or her parents being legally wedded, the court of law needs to establish the parentage of the unmarried couple. A relatively recent law in California states that if the parents of a child are legally registered as domestic partners, then they will be considered as the child’s legal parents too. However, owing to the fact that the law is still rarely used and quite unsettled, it is advisable for same sex parents to obtain legal consultation from a professional attorney in order to establish their parentage over the child.

What is the legal implication of establishing parentage? 

The state law of California stipulates that an unmarried couple is required to obtain a court order to establish their legal parentage over their children. The parentage can also be established by signing a legal ‘Declaration of Paternity’ which states that the couple is the legal parent of the child in question and is obligated to contribute for his care and support. To cite an example, if a child is born to the female spouse before she was married, the parentage of the father needs to be established in order to provide him the legal right to the child. This implies that even if the male spouse was the biological father of the child, he cannot exercise his rights unless he receives a court order that states his parentage as legal. 

Why is it important to establish the parentage? 

It is essential for an unmarried couple to get its parentage established by the court of law, in order to be eligible for requesting custody, visitation or support of the child in the event of a divorce or a legal separation. The request for the custody or visitation may be applied in conjunction with the paternity case in the court of law. However, once the parentage has been established, the individual or couple needs to adhere to both their rights as well as their responsibilities as the parent of the child.

The individual will then be eligible for requesting the custody or visitation of the child. In addition to this, he or she will also be obligated to make adequate contribution towards the support and healthcare insurance costs for the child.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Using A Minor’s Counsel In a California Custody Case

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmIn many divorce cases in California, the minor children are usually not allowed to speak up or testify for their concerns in the court of law. Or to put it more clearly, minors involved in a parental divorce are not allowed to voice their opinions directly in front of a judge. However, for this reason, the court has a provision of facilitating a ‘minor counsel’ to represent the child in the trial proceedings.

Who is a Minor’s Counsel? 

In simple words, the court appoints a neutral third party as a minor’s counsel who is supposed to interact with the child and determine his or her preferences and concerns regarding the custody and visitation arrangements. The minor counsel is obligated to represent the child in the court of law and voice his opinions, without compromising on the latter’s emotional well being and right to expression. Minor’s Counsel is expected to stay neutral and represent the best interests of the child without trying to influence him or her to take sides with either parent. He also needs to establish the best interests of the child without being affected by his negative emotions in abuse, domestic violence or neglect related divorce cases.

More often than not, the court specifies that separate minor counsels should be allotted for each of the children involved in a divorce. Typically, the parents are required to pay off the charges for appointing a minor counsel. However, if the parents cannot afford to do so, the county may offer to pay for the representation. The attorney who has been appointed as the Counsel will continue to exercise his representative duties until the child turns 18 years of age. 

What is the function of Minor’s Counsel? 

Since the Minor’s Counsel is expected to be the voice of a child in the court of law, he should be well acquainted with the facts and figures related to the latter. He needs to research the general information regarding the child from his therapists, teachers and parents and establish as to what will be best for his safety and well being.  Minor’s Counsel will also be required to browse through the medical history and school records of the child and determine whether there was any existing or past psychological condition that might aggravate in the current times of distress. Through an all round research of the child’s personality, a Minor’s Counsel can best evaluate his needs and make suggestions to the judge accordingly.

A minor counsel also has the right to express and should express the child’s wishes in the court of law. However, it is up to the judge’s discretion to follow through with the requests or not.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Disputing Parentage and Genetic Testing

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorneys; The Maggio Law FirmAs per the statutes of the California law, a male partner who is being established as the legal father of a child, has the right to dispute his parentage and request to undergo a DNA analysis or genetic testing to establish the authenticity of his biological relationship with the child. Since the DNA of every individual is unique and usually a child inherits several sets of DNA from both his father and mother, an analysis of the DNA coding can be a sure shot way of determining the biological relationship between the parents and the child. The parentage laws in California are quite complex. There are several cases, wherein an individual is declared by the court of law as the legal father of the child, even though the genetic tests prove otherwise.

When can you request a paternity test?

More often than not, it is advisable to go for a paternity test at the very beginning of a case. If an individual receives a Summons and Complaint Regarding Parental Obligation by an individual or Local child support agency, he has a period of 30 days from the date of being served with the legal documents, within which he can file for a response and request a paternity test to establish the parentage. In the event that the individual fails to respond to the complaint within 30 days of being served, the court of law has the right to attribute him with the legal parentage even without a paternity test. 

How to proceed after the results of the paternity tests are out?

Once the results for the genetic testing are determined, you can consult your lawyer to assist you in deciding upon the most favorable option for you to proceed with. For example, if the test result reveals a high probability of you being the biological father of the child, you have the option of either accepting the parentage or going to the court for contesting the paternity case. If however, the test results reveal that there are extremely low chances of you being the father of the child, the parentage case filed against you will be automatically dismissed by the court. In addition to this, if an individual does not approve of the test results, he has the right to request a re-analysis of his DNA at extra charges.

Generally, if a court has already issued an order establishing your paternity with the child, it is nearly impossible to dispute the verdict and request for a genetic test.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

California Child Custody Myths

Posted by: Gerald A. Maggio, Esq.

orange county child custody attorneys; The Maggio Law FirmCalifornia statutes which deal with child custody settlements have been often subjected to a lot of falsehoods and myths. However, as aforementioned, these are only myths that have no grounds to prove their authenticity. The actual law is quite different from what the popular opinion has become. We are going to bust several of such child custody related myths that have been doing rounds in the State of California for quite some time now.

Myth #1: Gender is relevant in deciding child custody cases

One of the most common myths about California law is the fact that the law favors one gender over the other in determining the child custody settlements. Many a times, we have witnessed that the fathers often tend to be on the losing side when it comes to obtaining full child custody. However, the reason for such occurrences can be attributed not to a gender bias, but to the simple fact the father often fails to state his merit in handling the kid, above the mother. California Family Code 3040 implies that the court shall not prefer a specific parent as the custodian on the grounds of his individual sex. 

Myth #2: A teenager gets the liberty of deciding his child custody

Notwithstanding California Family Code 3042, which states that teenage children get to state their preferences regarding their choice of living arrangements with a parent, it doesn’t imply that they have the liberty to simply pick where they live. The law states that the court is obliged to listen to the requests of children above 14 years of age. However, it does not mandate the court’s obligation to decide the verdict in sync with the child’s wishes. 

Myth #3: The parent who has temporary custody before a formal court order gets to keep it permanently

There is a widely prevalent myth that the parent who has the custody of the child prior to a formal court order, gets to hold the custody after as well. However, this is absolutely in contradiction with the actual statutes of the California Family Code section 3046 that states that the absence of either parent due to relocation or other circumstances will not be considered while making child custody and visitation arrangements.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

 
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