A Guide to Custody Laws
The laws govern the procedure on how to obtain custody, and it is important to stick closely to the laws and procedures to avoid complications. Though many cases may be handled without any issues, an experienced family law attorney can also guide you through the process. In particular, a lawyer can inform you of your rights and help you prepare for the litigation process in case you are fighting for custody or are the target of a custody fight.
There are two types of custody arrangements that parents may pursue through their lawyer and the courts, and both can impact the lives of you and your child. There is legal custody, which gives a parent the right to make decisions and communicate with the child’s teachers and doctors. Physical custody refers to the parent with whom the child essentially lives.
The family code presumes that joint custody is in the best interest of the child if it is in the child’s best interest. In California, there is no preference for one parent over another, however, there may be other situations where you may request sole or legal custody. For example, if the parents have domestic violence issues or substance abuse issues such as alcohol or drugs, then the Court may award sole physical or legal custody to one parent, or award the parent visitation rights instead of custody.
Parents who have joint legal custody will generally share in the decision-making for the child’s welfare including the child’s academic education, health care, emotional well-being, extracurricular activities like sports and music classes , or daycare. Parents with joint legal custody are not required to make decisions together, however, they should facilitate cooperative, respectful communication with one another when making decisions that affect the child’s welfare. This may include allowing the child to express their own preferences, unless it is not in the child’s best interests to do so.
Disputes about legal custody can arise when parents have different parenting styles, or money or time constraints which make joint legal custody challenging. Parents have equal access to information from the child’s doctor or school, and can make joint decisions together. Parents may also have a dispute within joint physical custody. If one parent fails to follow the court’s order, for example, they may petition the court to seek to modify the custody arrangement.
This may also apply to moving out of state. If the other parent wishes to relocate, they should be encouraged to seek the insights of an experienced family law attorney to help them navigate the issues. If you move out of the state, you should exclusively live in the new state for at least 6 months then file in order to get more parental rights by filing the matter in the new state as an original action or if you are just relocating temporarily, ideally until custody is awarded. These laws are critical if you move because a learned experienced family law lawyer may dissuade you from relocating out of state when there is already an existing child custody case pending in the state of CA.
Issues Arising from No Custody Agreement
The absence of a child custody agreement leads to both immediate and long-term consequences for the parents and the child. In the short-term, household chaos and conflict can quickly ensue. If one parent tries to unilaterally decide how many days the child will spend with each parent, that idea might be met with resistance from the other parent. This can lead to arguments over pick-up times, vacations and whether the child has the right clothes at the other parent’s home. Non-standard pick-up times and locations can threaten your relationship with your child.
Because there is often a lack of trust between the parents, both may unwittingly be alienating the affection of the child toward the other parent. In some cases, the parent with legal custody even conspires with a trusted family member to "kidnap" the child and move to another state. Those types of situations can lead to expensive, time-consuming legal battles before the fleeing parent can be stopped.
The long-term consequences of not having a written custody agreement can last for years, if not decades. The parent without legal custody may have no voice in important decisions affecting the child’s health, education and upbringing. Obvious examples include the right to name the child’s school, choose the medical providers and enroll the child in elective activities. Without legal custody, the custodial parent could do all of those things without consulting the other parent or even telling the other parent of the decision.
Although your divorce has the potential of turning you into a victim, you can avoid that by working with an experienced attorney to negotiate an effective custody agreement. Only then can your rights and interests be protected in the event that you and your ex-spouse cannot agree on issues concerning your child.
Temporary Custody Arrangements
Temporary custody solutions without agreement
Your options if you do not have an agreement to resolve your custody issues, and the other party will not work out an interim arrangement with you, are:
1. A written parenting plan that you can both sign.
2. Making an application to the court for an interim parenting order.
If there is no written parenting plan in place and the parties cannot agree on day-to-day care arrangements, the parties may still be able to agree to other arrangements in writing, without the need to apply to the court. A written agreement is very powerful. It can be enforced by way of an application to the court should either party violate its terms. A court will rarely order a party to breach a valid agreement between the parties.
Sometimes the court will order a temporary – or interim – order which can be short term on a very urgent basis and can be a place holder until the application for a final order can be heard.
A temporary agreement can be made either orally, (if the parties are comfortable doing so and the terms are simple), or in writing. If there is a temporary agreement in writing, as long as the child is living with the parent in consideration of that agreement, it is likely that the court will find that the terms of the agreement have been complied with and will refuse to issue a temporary order.
If there is no agreement reached by the parties, an interim order often serves to provide stability for the child until the time of the final hearing. A final order after a trial may be different from the interim order. Sometimes the court will use the interim order as a "trial run".
An interim order has been described as a "stepping stone"; it is often not meant to be a final decision. A judge may be reluctant to decide a matter of disagreement at an interim hearing. Some judges will decide on a limited basis at interim stage, for example how many overnights a child will stay with a parent. But if the parties are at an impasse, an interim order at this time may be a reflection of the most fluid and amicable period of the parties’ lives, and therefore might be disregarded at the time of final hearing when the parties’ tempers and conflict are both heightened. The judge will want to consider the facts and circumstances of the case at the time when the question needs to be finally determined and he or she is prepared to make a decision that may disrupt the child’s life.
Significance of Mediation and Legal Counsel
When navigating the complexities of child custody without an agreement, both parents can greatly benefit from the guidance of a mediator and legal professionals. Mature adults are often able to come to mutually agreeable terms that are in the best interest of their children even though they are separated. Unfortunately, though, these mature adults are not often experienced in dealing through the nuances of the law, nor do they generally have the knowledge to create proper agreements.
Mediation is often the process of choice to develop a child custody agreement without a divorce. It is a relatively low-cost and relatively quick solution that can save a family years of expensive litigation, especially when there are children involved. In mediation , the parents work with a neutral third party to develop terms of an agreement.
When all does not go well, those with experience and knowledge are needed to work with you. Child custody lawyers and legal assistance are invaluable throughout the legal process, from negotiating terms to developing a legally-binding contract. They can also provide clarification on the law to ensure that you know your rights.
Having a knowledgeable lawyer on-board can help to reduce time spent away from the family while also getting you more of what you want from the legal process. Children subjected to these experiences will have more peace of mind if their parents can come together to form an agreement without a fight.
Establishing a Formal Custody Arrangement
Navigating child custody issues without a settlement agreement can be further complicated by the desire to reach an amicable resolution. In order to facilitate this process, parents may wish to consider collaborating with a trained child specialist to assist in determining what is best for their children.
If, however, the parties cannot agree to a settlement or amicably determine a parenting plan, there are several steps they can take to establish a formal custody agreement.
Consult an experienced family law attorney. Before filing any court documents or proceeding to a hearing, it is important to consult a family law attorney with extensive experience handling complex child custody cases. This professional can help parents understand their rights, responsibilities, and the process ahead.
Prepare legal documents. The initial petition seeking temporary custody is filed with the court, along with a summons to appear. This petition should include a list of any property currently owned by the parents as well as provide a detailed plan for the parties to obtain custody of minor children. Once the petition is filed, the court will enter an order based on the recommendations of the family services office. A hearing may be held in order to address temporary custody until a final determination is made.
Determine what custody arrangement works for both parties. When determining child custody, the court must keep in mind the best interests of the child. This minimizes the risk of creating a custody arrangement that is not in the child’s best interests. To aid the court in determining what is just and fair, both parents must take into consideration several different aspects of their lives, including work schedules and travel requirements. It is crucial to maintain an open dialogue with your attorney during this process so that all the necessary elements of the process are properly handled.
Consider hiring an experienced child custody specialist. Working with a child custody specialist may simplify the terms of a custody arrangement. The specialist has experience resolving complicated custody issues and can guide parents through the court hearing process, which will put them in a better position to receive a favorable outcome.
Negotiate a binding custody agreement. Parents have the option of negotiating a settlement agreement that contains the terms of custody arrangements. Both parties and their attorneys must work closely during this process to ensure that the agreement is fair to all involved, including any minor children. If custody cannot be agreed upon, the next step is going to a court hearing.
Providing for the Best Interests of the Child
When parents do not have a child custody agreement in place, Texas Family Courts will make decisions in the child’s best interest. This applies when the child has been living in the state for a minimum of six months, and the court has jurisdiction. In the absence of a parenting plan, it is in the child’s best interest to have traditional visitation, preferably with both parents. This allows the child to build relationships with each parent and fosters stability and safety. When parents are in conflict, they often seek to protect the child by marginalizing the other parent. Telling the child not the speak to the other parent, for example, or spying on the other parent, could have an adverse effect on the child. When parents are able to put aside their differences and interact calmly and respectfully in front of their child , it will increase the chances that the child will feel secure. Because children can feel the mood of their parents, when their parents are angry, sad, or defensive, the child will have the same feelings. A creative schedule that allows the child to have time with both parents while still attending school may be a good solution in the absence of a custody agreement. If the child is very young, it is ideal for the child to be cared for by a custodial parent or live with the custodial parent if he or she is a teenager. Children should be shielded from conflict and interactions between parents during this time. In some cases, an introduction to family therapy may be needed. Nonetheless, the child’s welfare will be protected and his or her best interests are being met when parents are able to work together in spite of the divorce.