Parentage must first be established before a court can make child custody and visitation orders. Unless parentage is established, a court cannot make orders for child custody or visitation. So if you are a parent who desires to establish parenting/custody or visitation of your child, and the other parent refuses to voluntarily cooperate with you, we can help you commence action in court to establish parentage and to obtain child custody and visitation orders.
As an initial matter, it is important for every parent to understand that under the law, neither the mother nor the father is entitled to greater legal or physical custody than the other. There is a presumption, affecting the burden of proof (per the factors discussed below), that joint custody is in the best interest of a minor child. It is also important to understand that in California there is a statutory preference for custody and visitation arrangements and orders that assures children with frequent and continuing contacts with both parents, and that encourages both parents to share the rights and responsibilities of child rearing. Therefore, in principle, all things being equal, both parents are equally entitled to the custody of their minor children. However, custody and visitation issues are never really straight forward because all things are never really exactly equal.
CHILD CUSTODY CONSIDERATIONS
In making child custody and visitation determinations in annulment, legal separation, divorce, Uniform Parentage, and domestic violence cases or proceedings where a minor child is involved, the principal concern of the court is the child’s best interest. In making a determination of the best interest of the child, the court is free to consider any and all factors that it considers are relevant to the child’s best interest. Examples of some factors that a court may find relevant include the child’s feelings and preferences; each parent’s domestic and residential situation and proximity to the child’s school, the need for children to stable and familiar environment; the need for the child to have regular contact with siblings; the presence or absence of supportive family structures such as grandparents, stepparents, uncles and aunts, etc; the child’s school grades, attendance, tardiness, truancy, and discipline history, etc; the child’s extracurricular activities; etc.
However, there are certain mandatory factors that the court must consider. These mandatory factors that the court must consider are:
(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking custody against any of the following:
(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a care-taking relationship, no matter how temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
(c) The nature and amount of contact with both parents.
(d) The habitual or continual illegal use of controlled substances, alcohol abuse, or abuse of prescribed controlled substances by either parent.
There are many other factors that can affect child custody and visitation. For example, when a court finds that one parent has perpetrated domestic violence against the other parent or against the child or the child's siblings within the past five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to the domestic violence perpetrator is detrimental to the best interest of the child.
Also, conviction for certain violent crimes by a parent or other person residing with the parent can restrict or prevent a parent from being granted legal or physical custody or unconditional visitation of a child, unless the court makes a written determination that there is no significant risk to the child. It is important to understand that although conviction for any these crimes create huge obstacles to the award of unconditional custody or visitation, it is possible to overcome the obstacles. These violent crimes are:
(1) Conviction for crimes that require the person to register as a sex offender, for sexual crimes and some other violent crimes committed against a minor child, and for conviction for crimes under Section 273a, 273d, 647.6, or 290 of the Penal Code. A child may not be placed in a home in which that person resides, nor permitted to have unsupervised visitation with that person. If a child is permitted unsupervised contact with such a person, that is prima facie evidence that the child is at significant risk.
(2) Conviction for rape resulting in the birth of the child.
(3) Conviction for first degree murder of the other parent of the child.
Because the circumstances and situation in each case are different and unique, including issues such as parental conditioning, parental alienation, physical and emotional abuse, discipline avoidance, domestic violence, etc; and because of the broad range of factors and circumstances that the courts are authorized to consider when making custody and visitation determinations, it very important that you call the attorneys at Ihejirika & Associates, P.C to discuss your case, and to represent and guide you as you go through the process of establishing child custody and visitation.
Whether the child custody order you are seeking is for sole or joint legal custody, sole physical custody, joint physical custody, split physical custody, supervised visitation, no visitation/contact, or move-away, call the attorneys at Ihejirika Law Corporation right away to discuss your case.
CALL US TODAY TO DISCUSS YOUR CASE.
After a court makes an order regarding the custody and visitation of a minor child, the court retains continuing jurisdiction to modify the custody/visitation order until the child reaches the age of majority (until the child turns 18 years old). Therefore a parent or party always has the right to seek a modification of a child custody order at any time, by filing a motion for modification of custody or visitation. Parents can also modify the child custody and visitation order by written agreement.
When a parent or party files a motion for modification of an existing child custody or visitation order, that parent or party has to show the court that a “significant change of circumstances” has occurred since the last custody/visitation order was made, which supports or justifies a modification of the existing order.
Although what change in circumstance will qualify as a “significant change” is different in each individual case, there are very many scenarios that can present sufficient justification for child custody and visitation modification. Possible reasons for custody/visitation modification include change in the child’s preference, change in the child’s age, change in either parent’s work schedule, change of residence by either parent, change in the child’s school, geographic relocation by either parent, irresponsible, erratic or dangerous behavior by either parent, drug or alcohol abuse, domestic abuse by or against either parent, one parent’s persistent failure to cooperate with the other parent, disobedience of existing custody order by either parent, or either parent causing the child to have poor grades, attendance, or change in either parents domestic situation, etc.
If you believe that there has been a significant or substantial change in the circumstances affecting the custody and visitation of your minor children, and you want to have the court modify your existing custody or visitation order, call the attorneys at Ihejirika & Associates, P.C immediately to discuss your case.
CALL US TODAY TO DISCUSS YOUR CASE.