If you are a non-custodial parent attempting to navigate the child custody laws in California, you already know that it can be a daunting task. It’s very important to understand the differences between physical and legal custody and the factors that are at play when the court is determining custody orders. If your California child custody orders have already been issued, remember the process does not necessarily end with the initial custody order. Changes in circumstances such as the relocation of a custodial parent or significant changes in circumstances, etc. can require that the court revisit the case and potentially issue a modification.
Types of Custody in California: Legal and Physical Custody
There are two types of custody in the state of California: legal custody and physical custody. Legal custody refers to the authority to make major decisions on behalf of the child in connection to education, religion, and health. When joint legal custody is awarded, each parent has equal rights and responsibilities for decision-making. Physical custody refers to where the child actually lives – the time they spend with each of their parents. Legal and physical custody orders can come in a variety of combinations, for instance, one parent may be awarded sole physical custody with the child living with that one parent full-time, but both parents could share joint legal custody with both parents sharing equal responsibility for making decisions for the child.
Physical Custody and Visitation in California
When California court is determining custody of a child, they primarily consider what is in the best interest of the child but err on the side of providing both parents opportunities for contact with the child. Unless one parent can prove it is not in the best interest of the child, the California court will typically award joint physical custody to both parents. At the discretion of the court, one parent may be named the primary caretaker of the child and one parent’s home may be named as the child’s primary residence. In the majority of cases, visitation is awarded to a parent who is not awarded primary physical custody of their child.
Seeking a Child Custody Modification in California
Either parent (custodial or non-custodial) is allowed to petition the court for a modification to an existing custody or visitation order. The court will reconsider the case and any new, relevant factors, looking again to what is in the best interest of the child. In most cases, the parent petitioning the court for the child custody modification will need to show that there has been a change of circumstances since the original child custody order was issued OR the petitioning parent must show that the other (custodial) parent is wrongfully denying them (the non-custodial parent) their court-ordered visitation with the child.
Relocation and California Child Custody
Custodial parents in California have the right relocate and change the residence of the child except in cases where it would affect the welfare of the child. The non-custodial parent does have the right to challenge the current custody order in the case of a relocation and the court holds broad discretion when determining what is in the child’s best interest and whether it would be in the best interest of the child to remain with the non-custodial parent rather than moving with the custodial parent.
The Child’s Testimony in California Child Custody Cases
The California Family Code saw significant change in 2012 regarding the child’s right to testify in custody cases. The new law states that a child may address the court when they are willing to do so and when it is found to be in their best interest to do so. When considering whether it is in the child’s best interest to testify, they consider age of the child and potential emotional risks of testifying. If you need assistance preparing for a child custody case or if you need to petition the California court for a modification of an existing child custody order, please get in touch with one of the experienced child custody and divorce lawyers at The Maggio Law Firm today.