How to get full child custody in california
How Do I Get Full Custody in California of My Children?
Getting full custody of your children requires a child focused strategy
by B. Robert Farzad
How do I get full custody of my child in California? What matters to the court?
You have a California divorce and you are concerned about your kids. You are asking, "how do I get full custody in California of my child?" and you want answers. We are here to help.
First, make sure you know what "full custody in California" really means.
Full custody is the term parents sometimes use when referring to the legal term of sole custody. Sole custody comes in two forms - Sole legal custody and sole physical custody.
There is a significant difference between the two and in this article we will discuss how parents can and should obtain it.
Our family law firm has offices in Los Angeles, Orange County and San Diego. We are available for an affordable strategy session to discuss your specific situation and provide you with legal advice.
A parent requesting full custody in California must have persuasive evidence
The court needs a compelling reason consistent with the children's best interest to order full custody to one parent.
We wrote a comprehensive guide on California child custody laws which discuss California's public policy of favoring frequent and regular contact with both parents and generally favoring joint custody.
A parent opposing a full custody request must not take the request lightly
Similarly, a parent who is facing a full custody order against him or her must be aware that he or she cannot just walk in the court and assume everything will work out.
Although a request for full custody is not something that a court should ever take lightly, a defending parent must be vigilant in his opposition and be prepared to set forth to the court why the requesting parent does not meet his or her burden of proof that is required by California law.
In addition, a parent opposing a request for full custody should consider whether he or she should make a counter request for full custody if the request for custody by the other parent is made in bad faith.
This includes but is not limited to situations where the other parent has engaged in misconduct such as false allegations of abuse, parental alienation, improper influencing of the children or interference with joint custody rights and is using any of that as a basis for the modification.
What evidence will the court will need to rule on a full custody request?
We will go through the common scenarios to seek full custody or oppose a bad-faith request for full custody.
Will a finding of domestic violence support a request for full custody in California?The short answer is yes, unless the other parent can persuade the court not to apply the presumption of Family Code 3044. Family Code 3044 in subsection (a) states:
"(a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, or against the child or the child's siblings, or against any person in subparagraph (C) of paragraph (1) of subdivision (b) of Section 3011 with whom the party has a relationship, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Sections 3011 and 3020.
This presumption may only be rebutted by a preponderance of the evidence."
Section 3044 then goes on to state how you rebut the presumption.
That means that a judge should favor a sole legal and sole physical custody request when one parent has been found to have committed domestic violence.
That however is not a conclusive presumption but a rebuttable one, which means the parent facing such a request can produce evidence to avoid a sole legal and sole physical custody order.
What impact will drug or alcohol abuse have on a full custody request?The court can take substance abuse into consideration when evaluating a request for full custody by one parent.
This includes drug or alcohol use and abuse of prescription medication, the latter of which is becoming an epidemic in America.
Parents often make the mistake of thinking that a simple allegation or even proof that the other parent has used drugs or alcohol is, by itself, enough to support a sole legal and physical custody request.
California law requires more than just the bare allegation that one parent uses drugs.
For example, to get an order for an alcohol or drug test, a parent must show habitual, frequent or continual illegal use of alcohol or drugs.
That is because the focus is on the children's best interest and unless alcohol or drug use has reached that point of compromising the children's best interest, family law judges may hesitant to make a sole legal and sole physical custody order.
That is very different than making orders other than full custodyHowever, the court can still limit parenting time and make other orders to protect the children, short of an order for sole legal and sole physical custody.
A parent concerned about substance abuse should be vigilant in retaining a good family law lawyerA parent faced with another parent who uses illegal drugs or abuses prescription medication or alcohol should be vigilant in his or her retention of an experienced family law attorney.
The family law attorney will evaluate the facts and determine what requests should be made to the court and whether or not sole legal and physical custody orders or something different is best.
What about a parent who is facing allegations of substance abuse in a child custody case?A parent facing a full custody (or any) request against him or her must be prepared to submit evidence that he or she does not abuse alcohol or use illicit drugs.
If the parent used to have a drug or alcohol problem, evidence that he or she has participated in treatment as well as alcohol or narcotics anonymous and has taken other steps to curb or eliminate his or her addiction will generally go a long way with a family law judge in the divorce and custody case.
Sincerity and honesty is a big factor in addiction and one mistake parents make is to try to hide the alcohol and drug use thinking that it will not be found out.
Doing so generally makes a bad problem worse when the addiction gets to a point where the evidence of it is clear and there is now also a history that the parent lied to the court about that addiction.
Anytime the parent gets caught lying to the court under oath about something serious, which an addiction and substance abuse is, that fact may not bode well for the parent in future hearings.
What about the issue of child abuse and full custody requests?
Child abuse also qualifies as a justifiable reason seek a full custody request in California.
The nature and extent of the abuse, as well as its proximity to the filing, are all important factors.
Parents who wait and do nothing regarding abuse for many months or a year or more may face an uphill battle when trying to persuade the court that the past abuse is good cause for current full custody orders.
Time is of the essence with child abuse allegationsA family law judge has to be a realist.
It may be difficult to persuade a judge that something is an emergency or a child needs immediate protection if you have done little to nothing to protect the child from the very abuse about which you're complaining.
In addition, delaying the reporting of the abuse and seeking a full custody request much later will put your own credibility at issue if:
- The abuse is not documented (photos, etc.), or
- There is no evidence of its reporting (law enforcement, child protective services, medical providers), and
- It becomes a he said and she said scenario, especially when the child is too young to testify and corroborate the abuse.
On the other hand, if the abuse is recent or it has a lengthy history which is likely to be repeated, parents stand a very good chance of obtaining full custody of the children in order to protect the children from further abuse.
The family court may order an internal investigation or appoint a custody evaluatorIn such situations, family law courts may appoint an internal court investigation or private child custody "730" evaluation of some type to determine the history of the abuse as well as obtain facts and recommendations from court-appointed expert witnesses or social services.
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What about false allegations of abuse or domestic violence?
Can that be used to request full custody?
This is a difficult topic because courts do take false allegations of abuse seriously, as they must pursuant to California law, but, in our opinion, do not take it seriously enough.
False allegations of abuse is one of the worst things that a parent or spouse can do to the other parent and children.
The more serious the false allegation, the more likely that a parent will need to take immediate action.When dealing with knowingly false allegations of child abuse, California law states in Family Code 3027.
5(b):
"The court may order supervised visitation or limit a parent's custody or visitation if the court finds substantial evidence that the parent, with the intent to interfere with the other parent's lawful contact with the child, made a report of child sexual abuse, during a child custody proceeding or at any other time, that he or she knew was false at the time it was made. Any limitation of custody or visitation, including an order for supervised visitation, pursuant to this subdivision, or any statute regarding the making of a false child abuse report, shall be imposed only after the court has determined that the limitation is necessary to protect the health, safety, and welfare of the child, and the court has considered the state's policy of assuring that children have frequent and continuing contact with both parents as declared in subdivision (b) of Section 3020."
You should seek full custody against a parent who made false abuse allegationsThose who are victimized by false allegations of abuse must take the case as seriously as those victimized by actual abuse itself.
It is the better way to protect the children's best interest and avoid further damage to their emotions and psychology.
Our experience shows a parent willing to make false allegations rarely stops doing so until they lose custody.
What if a parent has abandoned the children?
Is that grounds for full custody in California?
Abandonment is a serious allegation and there does need to be evidence in support of it. However, courts can make full custody orders against the parent who abandoned children.
We most often see this in one of two situations.
Scenario number one with abandonment and full custodyFirst, a situation where there has not been any custody order and one parent has been the sole caretaker of the children.
The other parent has provided little to no financial support and little to no time has been invested with the children since separation.
In such a scenario, when it has gone on long enough, the court has the discretion to order full custody to the parent who has been the caretaker.
That is because there has been no bonding between the abandoning parent and the children and it clearly would not be in the children's best interest to completely turn the status quo upside down and destroy what they have become accustomed to simply because the abandoning parent now suddenly wants to get back into the children's lives.
Does that mean the parent who abandoned the children is forever barred from re-entering the children's lives? Of course not.
However, in such situations, the court will want to see actual effort (and the result of that effort) by the abandoning parent and genuine and proactive work into restoring the relationship with the children and increasing the parental bond.
This is done by starting off with visitation that is not overnight and will allow the children to adjust slowly and steadily to the increased parenting time as he or she demonstrates to the court that he or she is now serious about spending time with the children.
The second scenario happens when there is actually a court order in place but the abandoning parent does not follow it.
The result should be the same but, because there is a court order, it is not uncommon for the abandoning parent to use it as a means of harassment of the other parent and threaten the other parent with contempt proceedings or other court intervention if the parent who has been caring for the children does not capitulate to the abandoning parent's whims, whenever he or she decides that he or she wants to see the children.
The parent who has cared for the kids full-time is placed into a difficult situation.
On the one hand, no right-thinking parent wants to violate a court order.
On the other hand, that parent knows that it is not in the children's best interest to be shuttled back-and-forth unpredictability like this just because of the other parent's lack of stability and abandonment.
The best course of action is to seek an immediate court order for a child custody and visitation modification.
Otherwise, the full-time parent will continue to be under constant harassment, intimidation and threats.
Once the court orders are modified, those things do not become an issue anymore because the abandoning parent has lost all of his or her leverage for his or her misconduct.
Are these all of the ways that a parent can seek full custody in California?
No article can cover every scenario but the above are common.
Contact our family law firm if you have any questions and want an affordable strategy session.
We can help you obtain full custody if the facts justify it or defend against a full custody request if the other parent does not have the facts to support his or her claim.
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8 Steps to Final Orders
Litigating custody of a child in California consists of eight main steps. Some may be skipped or rearranged and others added, depending on your circumstances and county.
At any point, parents can agree on a plan and have a judge sign it. Then the custody process jumps to Step 8.
Private mediation, collaborative law and other alternative methods for deciding custody follow their own processes.
Custody X Change is software that creates customizable parenting plans and custody schedules.
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Step 1: Preparation
Do your research and consider your options. Will you request sole or joint physical custody? What about legal custody? What does your ideal parenting schedule look like? Then, meet with a lawyer to come up with a legal strategy. Attorney representation is strongly recommended, but if you're not able to hire someone, you should at least do a free or low-cost consultation to hear the thoughts of a professional.
Step 2: Filing
Before you can request custody, you must open a family law case with your county's superior court; this can be a divorce, a request for a domestic violence restraining order, a paternity case or a custody case. Then you file a request for a custody order, which can be done by either parent. Once the other parent has been served with a copy of your court papers, they can file a response.
Possible: Emergency custody hearing
If a child is at risk of being harmed or removed from the state within the next few days, a parent can request an expedited hearing to determine if emergency temporary orders are necessary (also called ex parte orders).
If a judge issues emergency orders, they stay in effect until the next hearing, when they can be terminated, replaced by temporary orders or extended.
Step 3: Orientation
Many counties in California require parents to complete a short orientation at the start of their custody-related case. Often times, it can be done online, such as in Los Angeles, Santa Clara and Napa counties. If your county doesn't require orientation, the video introduction to child custody mediation from California Courts can help you prepare for your next step.
Step 4: Court-ordered mediation
Parents are required by law to attend mediation before having a judge decide their custody or visitation arrangement. They will meet for free with a court-employed mediator for up to several hours, and lawyers will not be present.
The goal of mediation is to develop a detailed parenting plan the parents both support, which can be signed by a judge to become a final order. If mandatory mediation does not result in total agreement, some counties' mediators give recommendations to the court.
Remember that anytime parents are able to agree on a parenting plan ― through mediation, informal negotiation or otherwise ― a judge can sign it, and the custody process jumps to Step 8.
Step 5: Hearing
If mediation did not result in a parenting agreement, it will be followed by a hearing. This is generally the first time the parties meet with a judge, though some counties require an initial hearing before court-ordered mediation.
After reviewing the facts of your case, the judge will do one or more of the following:
- Order a child custody evaluation if they want a mental health professional to weigh in
- Appoint child's counsel if they believe the child needs a lawyer
- Give temporary custody orders if the parties can't agree on a parenting arrangement for the duration of the custody proceedings
- Order another hearing or a trial
Hearings are opportunities for you to briefly present your argument and evidence to the judge so he or she can determine next steps.
The parents and their lawyers typically all speak.
You may have as few as one hearing or as many as 10 hearings throughout your case, depending on your family's circumstances.
Step 6: Conferences
Conferences are essentially meetings with the judge. Different counties use different types of conferences. In many cases, only lawyers enter the chambers, and they report back to their clients on what was discussed.
A pretrial conference or trial setting conference makes sure both parents are ready for trial, estimates how long the trial is likely to take, sets ground rules and more.
In a settlement conference, the parents again come together to try to find common ground and avoid a trial. This time, the judge guides the parents toward a solution. Some counties do not require or offer this step, while others use multiple settlement conferences.
Step 7: Trial
If parents are unable to settle, they will ultimately end up in trial.
A trial is like an extended, more formal version of a hearing.
Both parents get to present evidence and question witnesses in front of the judge so he or she can issue a ruling.
A trial can last hours, days, weeks or, in extremely complicated cases, months. Often there's a significant waiting period between the last hearing and the trial because court calendars fill up and lawyers need time to gather evidence.
At the end of the trial, the judge will announce their decision. Once signed, it is known as a final custody order.
Step 8: Final custody orders
To bring the custody process to a close, a judge will sign a final custody order. It lays out, in the form of a parenting plan, the legal terms all parties must abide by until each child involved turns 18 or is emancipated. The details are decided either by a judge after a trial or by the parents themselves, with the judge signing off.
If a parent has reason to contest a court's decision, they can appeal to a higher court and begin the legal process again. They can also file a motion to cancel the court order.
As children grow older and their lifestyles change, orders often need to be modified several times. Parents can develop a new parenting plan together or one can request that the court modify the existing plan.
If the other parent doesn't follow a court order, you should keep detailed notes of the violations. For serious or repeat violations, you can contact police or file for contempt with the court.
Throughout your case
During the custody process, you may need to create a parenting plan, draft custody schedules, track your time with your child, keep a log about interactions with the other parent, and more.
The Custody X Change app enables you to do all of this in one place.
With a parenting plan template, custody calendars, a digital journal and beyond, Custody X Change makes sure you're prepared for whatever arises in your journey to child custody.
Throughout your case, take advantage of our technology to stay on top of all the moving parts.
Custody X Change is software that creates customizable parenting plans and custody schedules.
Make My California Plan Now
Custody X Change is software that creates customizable parenting plans and custody schedules.
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Protecting the interests of the ward is the main task of guardianship in the USA
American experts spoke about the organization of the system of guardianship and protection of the rights of people with mental disorders in the United States, answered questions from Russian colleagues and parents of children with disabilities.
Renata Ticha, Co-Director of the Center for Global Inclusive Education Resources for Inclusive Education at the University of Minnesota, University of Minnesota, and Co-Director of the Research and Training Center for Measuring Home and Community Services, Brian Abery.
Experts noted that the main task of guardianship in the United States today is to protect the interests and ensure a decent quality of life for people with disabilities (HIA), including those with mental disorders. Even 20 years ago, people with mental disabilities were deprived of the right to free will on the grounds that they could not express their desires in a form that was understandable to others. However, according to the UN Convention on the Rights of Persons with Disabilities, every person should have this right. People with developmental disabilities need only additional support, which should be provided by the state.
“We don't have boarding schools as you understand them. Since the early 1960s, the US has been moving away from these types of institutions. There are very few of them left. As a rule, people with developmental disabilities are placed there if they pose a threat to themselves or others, says Brian Abery. “However, today 1.3 million US citizens are under some form of guardianship.
”
There are several types of guardianship in the United States: limited, full, and emergency. In limited guardianship, the court establishes the limits of the person with developmental disabilities on the basis of specific facts and determines the powers of the guardian, the guardian has only those powers that are assigned to him. For example, the court decides that a person himself cannot make decisions in the provision of medical care. In such a case, it is the responsibility of the guardian. Such guardianship can be terminated.
Full guardianship is now used very rarely, and only in some states. It is appointed by a court decision if it is concluded that a person is completely incapable of making decisions. The guardian in this case decides absolutely everything for the ward and keeps his life under complete control. With full guardianship, the ward is deprived of many rights: the right to vote, marriage, refusal of medical care, reproductive rights. Full guardianship can only be terminated if the person with disabilities proves in court that it is no longer required.
Emergency care is used when a person is unable to make decisions independently for a period of time, for example due to a progressive illness or injury. Such guardianship is appointed for a short period of time.
Relatives or family members act as guardians in the USA. If there are no such people, the court appoints a guardian. This could be a social worker, a lawyer or a psychologist. The work of a guardian appointed by the court is paid by the state. There may be multiple guardians.
The main task of a guardian is to protect the interests of the ward. All decisions of the guardian must be made on behalf of and in the name of the person who is under guardianship, taking into account his interests and values. For example, if the ward wants to live with a partner, the guardian should help realize this desire. Every year, the guardian reports to the court on the condition of the ward in order to extend the guardianship. Also, the work of guardians is checked by social services.
Over the past 10 years, the care system and attitude towards people with developmental disabilities in the United States has changed a lot. It is now assumed that every adult has the ability to make decisions, since this ability is not innate, but an acquired skill that can be learned.
In the US, an alternative to guardianship has emerged - a supportive decision-making system. This is the process of supporting an adult with a disability in making decisions that affect the quality of his life: place of residence, work, leisure, etc. At the same time, it is important to understand that decision making with support is a skill and there is no ideal model for decision making with support.
Renata Tikha: “In our country, any person with a physical or mental disability over the age of 18 with a sufficient level of consciousness can enter into a decision-making agreement with support and even appoint an assistant on their own. Usually, a relative, friend, loved one is chosen as an assistant.
