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Family Law




Child Custody in California Overview

 

Child custody orders in California involve both Legal and Physical Custody.  NBA Desert Law strives to help you understand the law and assist you in obtaining the custody and visitation that is in the best interest of your child(ren) based on the specific circumstances of your family.

 

  1. Physical Custody

Physical custody involves the time that a child is under the supervision and control of each parent, and encompasses activities outside the home such as school, daycare, or activities. Joint custody does not mean that the parents have a 50/50 timeshare. Instead, it means that the child or children live with both parents to some degree.

“Sole physical custody” means that a minor child is residing with only one of the parents, and so is under their exclusive control. The other parent is then entitled to “visitation.”

“Joint physical custody” means that each of the parents has significant periods of physical custodial time with the minor children.

California Family Code section 3010 provides that both parents “are equally entitled to the custody of the child.”  A court cannot grant custody to one parent merely because of their gender or finances.

  1. Legal Custody

Family Code section 3020 expresses the public policy in California that  the Court should  (a) “assure the health, safety, and welfare of children” and  should (b) “assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interests of the child….”

Family Code section 3003 describes “joint legal custody.” It involves the right, but not always the obligation, for parents to share information and make decisions affecting children jointly.

Family Code section 3011 sets forth some best interest factors that the Court is required to consider. However, the best interests of the child can depend on the circumstances of each family’s situation and can change over time.  A history of domestic violence or habitual substance or alcohol abuse can create presumptions against one party of the other that may affect whether the custody awarded is joint or sole.

 

SPOUSAL SUPPORT

  1. “Temporary” Spousal Support

Temporary or “pendent lite” spousal support is intended to “temporarily” preserve the financial status quo that existed at the time of the parties when they are moving from one into two households upon separation. It tends to be higher than permanent or judgment spousal support as it is calculated based on a computer generated formula which primarily takes into account the parties’ current incomes. The Indio Family Law departments utilize the XSpouse computer program.   The Judge will input the gross incomes of the parties into the program. If there are children, the respective custodial timeshares between the parents as to each child, in percentages, must also be entered.

Where a party is a self-employed spouse, their net pre-tax earnings must be determined after deducting business expenses. This can be a complicated area, because what is deductible for purposes of Schedule C accompanying a tax return is not binding upon California courts for purposes of figuring support.  In addition, self-employed individuals are often able to “fix” their income to an amount advantageous for calculating support.

The court determines the temporary support obligation weeks after a request for support is made (by way of a “Request for Orders” (RFO) application with is filed with the Superior Court).  Generally, the court makes the support order retroactive to the date the request was filed. Spousal support will only be issued retroactive to the date you file your RFO, so it is smart to file your application sooner rather than later.

NBA Desert Law ensures that this process is done expeditiously to protect you and your family.

  1. “Permanent” Spousal Support

In long term marriages, i.e. generally over 10 years, ‘permanent’ spousal support is not determined by a guideline formula but instead by Family Code § 4320.  These “4320 Factors” include a number of areas that the Court must examine. In some cases, considering these factors results in a lower support entitlement or obligation than at the temporary stage. The main factors, however, are: (1) the marital standard of living establishing during the final years of the marriage, (2) the needs of the supported party, and (3) the ability of the higher earner to pay. “Permanent” support does not mean non-modifiable.  This number can be modified upon a showing of a substantial change of circumstances.

If you are going to be required to pay spousal support to your spouse, you may want to request that the Court order your spouse to undertake a vocational examination. This may result in an imputation of income to them and becomes a basis to lower or terminate your alimony obligation.

Remarriage of your former spouse, death of either party, or a new domestic partnership, will terminate your spousal support obligation.

DOMESTIC VIOLENCE AND SPOUSAL ABUSE

Domestic Violence can take many forms.  This area of law recognizes that individuals are more vulnerable to mistreatment by family members than anyone else can be.  According to the National Institute of Mental Health, physical violence occurs between family members more often than it occurs between other individuals or in any other settings. According to U.S. Statistics, 95% of reported abusive partnership violence involve assaults by spouses or ex-spouses. Alcohol and substance abuse are frequently linked to domestic violence.

Partners who are battered frequently have low self-esteem. They believe myths about battering relationships such as accepting responsibility for the batterer’s actions. If a spouse feels anger and fear, she may have a sense of guilt that causes her to deny it. They often believes no one can help them, and become economically and emotionally dependent upon their partners all the while believing the abuse is their fault.

Sometimes domestic violence is not as obvious as black eyes and bruises. Domestic violence can include online harassment, breaking furniture, threats to people, children, and pets, and emotional abuse.  But domestic violence is expressed in a variety of ways which, at their core, are all about control over the battered spouse.

Unfortunately, while domestic violence is a real problem in society, the system can be “played,” and allegations may be trumped up to gain strategic advantage in a small percentage of family law cases.

California Family Courts have the power to prohibit the following activities by enjoining them through domestic violence restraining orders: “molesting, attacking, striking, threatening, sexually assaulting, battering, harassing, telephoning, including but not limited to, annoying telephone calls …, destroying personal property, contacting either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing a good cause, of other named family, or household members.” Family Code section 6320. Hence, each of these activities may constitute abuse that justifies the issuance of emergency and permanent orders. There is no requirement of an injury and many times the abuse is not that direct. Often the abuser abuses indirectly and destroys personal property, or isolates or humiliates a victim, or controls his or her access to friends, relatives, or finances.

One tool, available to victims is to request (with sufficient evidence) an order excluding a party from the family dwelling, no matter who is the named tenant, or holds title to a home, or when the residence was leased or acquired. See Family Code sections 6321 and 6340.

Being a victim of domestic violence may entitle you to actually terminate your lease with a landlord under certain circumstances if you need to move for safety reasons. Here is a link California Code of Civil Procedure section 1946.7, which tells you what is required to accomplish this.

When children are involved and restraining orders are issued, a rebuttable presumption arises under Family Code section 3044 that a joint physical or legal custody for the perpetrator would be detrimental to the best interests of the child. Any visitation to such a person must be limited, specific, and often supervised.  At the same time, Courts recognize that some parents seeking a strategic advantage may falsely claim, or exaggerate, domestic violence to gain custody advantages. This is why contested evidentiary hearings with cross-examination of witnesses and the proper introduction of evidence is so important.

GUARDIANSHIPS

Guardianships are actions brought in Probate Court wherein a family member or concerned party petitions the Court for custody of a child that is not theirs.  The benefit is to protect the best interest of these children and to ensure that they do not end up within the jurisdiction of Child Protective Services.  Due to the fact that this action can take custody away from a parent and give it to a non-parent, the procedural and legal requirements are extremely complicated and technical.

ADOPTIONS

Rejeanne Eyre has extensive experience with termination of parental rights and adoption actions.  In fact, she is frequently appointed to represent litigants by the Indio Branch of the Riverside County Superior Court.  A Step-parent adoption is one of the most common types of adoption.  The law in California recognizes that sometimes being a parent means more than sharing the same DNA.  A step-parent can lawfully adopt a child only after the other parent’s rights have been terminated.  The most common way to establish this is be proving to the Court that the child has been abandoned by the other parent for the requirement amount of time. Step-Parent or familial adoptions can ensure that family relationships are given proper recognition and can ensure stability in a child’s life.  However, the process and legal requirements can be quite complicated.  Rejeanne Eyre also has extensive experience representing individuals who find themselves in the position of having their parental rights taken away unjustly.

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