Child custody disputes are without a doubt one of the most difficult parts of the divorce process. When a child’s well-being is involved, the stakes are higher than ever, and both spouses can lose sight of the larger picture when a battle ensues and difficult details about custody and visitation issues come into play.
At Pinkham & Associates, many of us have been through this process ourselves, and we understand how emotional and fraught it can be. We also know, as both parents and legal professionals, how important it is to work with experienced, level-headed attorneys to resolve child custody issues. The last thing you need is an inexperienced divorce attorney’s attempts to stir up conflict or pick a fight to earn themselves higher fees when some reasonable settlement is what is best for you and your children’s future.
If you need help with a dispute involving custody, visitation or parenting time under California law, contact the Orange County child custody attorneys at Pinkham & Associates for compassionate and professional legal advocacy.
California Child Custody Laws
California law directs that the children involved in a divorce should have “frequent and continuing” contact with both parents. As a practical matter, this means that unless you can prove that your children may be harmed by visiting with their other parent, and with all other things being equal, the court will presume, all things being equal, that it is in the best interest of your children that you and your ex should both have an equal amount of time with your children.
The best and most flexible child custody schedules are typically decided by the parents themselves. In Orange County, California – like in many other jurisdictions – if parents cannot decide on a custody schedule on their own, they will first be required to go through a mediation process before they are allowed to go before a judge. If the parents still cannot work out a parenting time schedule that they can both live with, the parties will then be forced to go to court and the court will decide for them.
Who Can Have Custody of a Child in Orange County, CA?
California mothers do not have an advantage over California fathers when it comes to court-awarded custody. No matter the age of the child, either parent can be awarded custody in Orange County. Custody decisions also do not depend on whether or not one parent has a physical disability, a different religious belief than the other parent or the child, an alternative lifestyle, or a certain gender identity or sexual orientation.
Child Custody Mediation in Orange County
When setting up a negotiated custody and visitation schedule, it is helpful to remember that whatever works best for your family is usually going to be agreeable to the court. Do you both want your child to live with Dad except for when he’s with Mom on Mondays, Wednesdays, and Fridays every third week? That may be confusing, but if that works for your family, and the child is not harmed in any way by such a schedule, the court is likely to sign off on it. You can alternate weeks or have the kids go to the other parent every other weekend.
Creativity is allowed and even encouraged so long as it’s in “the best interests of your children.” That is the only thing the judge will be worried about. Frankly, the courts don’t care about mom or dad. Most judges will contend that Family Law courthouses exist to make certain children are safe and well taken care of.
What Not to Say in Child Custody Mediation
Child custody mediation should be as civil an experience as possible. Use polite terms, and when in doubt, refer to your ex-spouse the way you would in a professional setting. Do not use foul language, and refrain from losing your temper, bringing up unrelated subjects such as property disputes or the fact that one parent cheated on the other, or calling each other names – it will only backfire. Keep in mind, you want the mediator to be on your side. Keep the tone as calm as you can, and focus on what’s in the best interests of your child. We recommend writing down all decisions being made between the two of you and the mediator, and keeping records of any agreements or appointments that you make with your ex-spouse around your child and their care.
Above all else, don’t bring your child with you to mediation. Try to keep your child entirely separate from custody mediation, and do not bring up the subject while they’re around or in instances where they could overhear. In fact, you should never discuss the divorce or even custody issues with your child or children. They are children, keep the adult matters to the adults.
What Evidence Can You Use to Obtain Custody in Orange County?
If you and your ex cannot agree on a joint custody plan, you will need to present evidence in court in order to sway the judge in your favor. At Pinkham & Associates, executive divorce attorneys recommend taking every step possible to come to your own decision through the mediation process before you bring a custody battle to the courtroom. The outcome for children is often much better when both parents can maintain a civil relationship and agree on their shared interests. Judges should be a last resort when it comes to making decisions about your children’s upbringing.
That being said, there are some situations where a court battle over custody is absolutely necessary. If you do need to present evidence in an Orange County family court, the kinds of proof you will need are directly tied to the kinds of issues the judge will consider. For instance, evidence of infidelity is not considered when deciding child custody in Orange County. Every piece of evidence should instead be geared toward illustrating that you can provide a stable, nurturing, and reliable home environment for your kids.
Examples of evidence in your favor might include:
- Physical calendars of visits / schedules / parental logs
- Report cards
- Medical visits / documents
- Proof of steady income and stable finances
- Witness testimony
- Time spent with your child
Examples against proof that can be used against you or your spouse gaining custody of a child might include:
- A history of domestic violence
- Substance abuse
- Lack of time spent with the child / schedules / parental logs
- Other factors proving negative behavior / influence
How Do Orange County Family Courts Determine a Child’s Best Interests?
California family law regarding children is all about the best interests of a child. When children are involved in a divorce, the court system is only concerned that their health and well-being is safeguarded. Because children are usually best served when they enjoy a close relationship with both parents, California courts typically seek to foster those mutual bonds as much as possible. For this reason, sole custody is much rarer than you might think in Orange County.
Requirements to Get Custody of a Child
In order to get custody of a child in CA, you will need to demonstrate that doing so would serve the child’s best interests. There are no formal requirements for income under California law, and although being gainfully employed is often an important way to show that you can provide for your child’s needs, your employment may be a negative factor for a custody schedule if you work away from the home more than the other parent. If you work 50 hours per week, and you are away from the home six days per week from 6 a.m. until 7 p.m. at night, how much time do you have to dedicate to caring for your children? What if in the same scenario, your spouse only works part time during the time your children are at school. Your spouse would have a great deal more time to dedicate to the children and therefore, the court is much more likely to give primary custody to the less-working parent and weekends to the parent who has very little time available for their children.
Again, shared custody is presumed to be in your child’s best interests in Orange County and throughout California unless proven otherwise. This means that the grounds for full custody of children often depend on illustrating that your ex-spouse sharing custody would endanger your child in some way.
Child Custody Investigations
Child custody investigations are supposed to be, and generally are, impartial, court-ordered experts used to investigate and create a fuller picture of the circumstances in which you raise your children. Not every divorce involves a child custody investigation, so it is particularly important that parents attempt to come to a shared understanding of how their childrearing responsibilities and time will be split before an investigator needs to get involved.
Additionally, child custody investigations in Orange County can take a long time, often around 12 weeks, and both parents may be evaluated – not only one side. There is a fee of $50/hour associated with a child custody investigator’s time, which can be assigned to one parent or separated between the two.
Should a child custody investigation be launched, it usually consists of a trained forensic psychologist who conducts separate interviews with parents and the child, and observes the home circumstances in which they live. The child custody investigator is specially trained in the effects of divorce and all other social factors and circumstances on children and is looking for factors that the Court should consider when making its decision. Your child will likely be interviewed alone, in an effort to avoid them being swayed by parental presence.
Pending Criminal Charges and Child Custody
If you have been arrested, or if you have pending criminal charges against you, those charges may affect the outcome of your child custody case. However, in Orange County, different kinds of offenses may weigh differently on the judge’s custody decision. Someone who is arrested for minor shoplifting, for instance, will likely have an easier time arguing that their conviction should not be considered or is not relevant in their custody case than someone who is arrested for violating a restraining order or for drunk driving. While most convictions will be considered as problematic, certainly not all are disqualifying during a divorce between parents.
Any crime that is sexual or violent in nature is certain to bring a great amount of concern to an Orange County judge in any child custody case.
Additionally, charges like homicide, aggravated assault, stalking, or kidnapping will also bear great weight when the court is making a custody decision, and can quickly result in one parent losing any and all custody of their child.
Types of Child Custody Arrangements
When parents talk about custody, whether they know it or not, they’re talking about two different things. Physical custody and legal custody are two terms that refer to different kinds of parental rights. Parents can share both kinds of custody over their child, and a court may be involved in deciding if parents cannot agree.
Physical Custody
Physical custody is where the children live, or which parent they live with. It is largely about how children spend their time and not about decisions like their healthcare or schooling. Physical custody can come with the right to make certain decisions about where children live.
Legal Custody
Legal custody is a parent’s right to make decisions with regard to their child’s health, education, and welfare. Just like physical custody, the parties can either have joint or sole legal custody. However, sole legal custody is actually quite rare. To get sole legal custody, you usually need to show that there would be some detriment to the children for both parents to share the serious decision-making in the child’s life, or that the other parent is incarcerated.
As an example of a legal custody decision, if a parent decides they want to change the school of the parties’ children; that is an educational decision that must be made by both parents if they share joint legal custody. If one parent has sole legal custody, they can choose the child’s school and religion, sign for them to get a driver’s license, etc. However if the parents share joint legal custody, all these decisions are to be made together.
Sole Child Custody Arrangements
Parents can share joint legal custody, but sole physical custody. For example, one parent may have only 20 percent visitation time with the children, which means they have “visitation,” not physical custody under California law. In a case like this, the parents share joint legal custody while one parent has sole physical custody. There are also occasions where the court could order joint physical custody, yet award sole legal custody to one parent. Again, this is quite rare, but growing in popularity by the judges.
Recently, we’ve seen a trend in cases where the parents constantly fight, and because of that fighting, they cannot come to an agreement on important issues regarding their children. In a case such as this, in modern times, the court may very well give one parent sole legal custody over all issues, or possibly only on a specific issue, so that decisions about the child’s care can be made without the parents fighting over that issue. Our firm’s founding attorney, Doug Pinkham, was involved in a case like this recently, where the parents simply could not get along long enough to make decisions with regard to the schooling for the child. In that case, Mr. Pinkham argued successfully that his client should have sole decision-making over the education decisions for the child. So, in that case, the parties shared joint physical custody, but our client was awarded sole legal custody for the decision-making for education and school issues.
Sometimes, it does not matter what language is in a court order or a court judgment. For example, you can write in a judgment that the parties have joint physical custody, but if the actual timeshare is high enough for one parent, then they have sole physical custody and the other parties’ time is considered visitation. Why is this important? Because if one parent has sole physical custody, they have a presumed right to “move away”, sometimes great distances, from the other parent. Specifically, “Sole Physical Custody” means that the lower timeshare parent has less than 30 percent custodial time with the children.
30 percent timeshare with the children is the magical number. If you have 30 percent timeshare or more, you have “Joint Physical Custody” of the children, no matter what the court order says. And, if you have 25 percent custodial time, you have “visitation” under California law. This can be a VERY serious issue in the real world, especially if one parent threatens to move or if there is a chance that the other parent may want to move out of the county or far away. If this is an issue, or a possibility in your matter, call the experienced Orange County custody attorneys at Pinkham & Associates.
Joint Custody Arrangements
A very important theory with regard to physical custody is that the court is only interested in the parties’ “de facto” timeshare. That is to say, that a court is only interested in the “actual timeshare” that the parents have in real life. Again, it does not matter what your court order says, it only matters what you’re actually exercising in real life.
For example, you could have court orders that say joint legal and joint physical custody. However, if the lower custodial timeshare parent is only exercising one weekend a month and shared holidays, that is clearly less than 30 percent timeshare, and even if there court order says joint physical custody, they only have visitation and the other parent has a presumed right to move away with the children, among other rights.
Bird’s Nest Custody Arrangements
Bird’s nest custody arrangements, or what is commonly referred to as “nesting arrangements,” are becoming more popular in Orange County, CA, as they have the potential to provide for more stability for children than moving them back and forth from residence to residence depending on visitation weeks. However, they also come with additional expenses and logistics that may not be appropriate for every divorcing couple.
A bird’s nest custody arrangement means that the child or children will reside in one continual home, and it is the parents that move out and trade living with the children in that home. This, of course, requires that both parents have another residence they can stay at when they are not exercising their custodial time in the home with the children.
Bird’s nest custody arrangements are not for everybody, often because of the practical and financial challenges involved. However, if a bird’s nest arrangement is possible and is in the child’s best interests, it can be considered a viable custody option to increase stability in a child’s home living arrangement.
Do I Need a Lawyer for Child Custody in California?
The attorneys at Pinkham & Associates regularly hear from people that went into court without an attorney and later relate that “the judge would not even listen” to them. Or, they say how the judge “hated” them or how the judge “went out of his way to help the other side.” These stories are VERY common, but the actual facts behind these stories are often different or confusing. You see, sometimes it seems that a judge shuts someone down because they look like they don’t want to hear the story, when the truth is the judge is NOT allowed to hear what the person is saying because they don’t have evidence of the story, or they are presenting their evidence improperly, or, what they are saying is simply irrelevant. When a judge shoots you down, or asks you to stop talking, there is very likely a legal reason behind that, not a social reason such as the judge doesn’t like them.
So, do you need a lawyer?
It should be obvious that if you are in a custody “battle,” you absolutely need a lawyer representing your interests in court. Also, conflict between you and your ex can be avoided by working with a professional and highly experienced attorney who can formalize and maintain communication between you both. If you and your co-parent are capable of deciding on child custody agreements entirely to both of your satisfaction, an Orange County child custody attorney could help you address potentially unforeseen circumstances and can certainly assist in putting the proper court orders together and submitting them to the court. Without court orders, you cannot enforce any form of custody arrangement. If you have come to an agreement that you both agree is in the best interests of your child, you can both work with one lawyer at Pinkham & Associates, to simply look it over to ensure you didn’t leave out any of the required language and those things that are pertinent to the court’s “child’s best interests” standard.
How Can an Orange County Child Custody Attorney Help?
An Orange County child custody lawyer can help in any of the following circumstances:
- When your ex-spouse is preventing you from seeing your child or violating a previously agreed-upon custody decision
- When you need to present your case in family law court, especially when arguing for sole physical custody
- When you and your ex-spouse cannot agree on child custody issues during the separation. Some examples might include visitation rights, where the child will reside, where they will go to school, and what you each will contribute for their expenses
- When you are worried the situation in your ex-spouse’s new home has changed or could be dangerous for your child
If you are worried about the cost and are considering representing yourself in an Orange County child custody battle, please do not hesitate to reach out to Pinkham & Associates for a complimentary consultation. Child custody is one of the most important decisions that can be made and should never be done without at least speaking with a legal professional to ensure that you understand what kinds of hurdles that lie ahead, as well as the magnitude of what you are undertaking.
A child custody attorney will be experienced in all of the following areas of Orange County family law:
- Filing court-ordered paperwork with the correct legal procedures and in the correct timing, like pre-trial orders, child support worksheets, ex-parte temporary custody orders, and more
- Helping you gather the kinds of evidence the court will consider and ensuring that you do not accidentally waste their time or sway them against you by submitting things they will not take into account
- Compiling character references and providing coaching on what kinds of elements the court will be looking for
- Preparing witnesses for court, including contacting expert witnesses such as forensic accountants or medical professionals
- Developing a legal strategy for your approach and providing context on previous cases heard by the court that may have a bearing on their decision
- Providing insight throughout the case, as well as adapting your strategy in real time if necessary
- Helping you with your personal testimony and ensuring that you are ready for tough questions from the judge
Use our child support calculator to estimate how custody arrangements will impact your payment obligations.
When Does Child Custody Need to Be Modified?
Unlike the initial separation and divorce agreement, co-parenting can be a process that lasts for years and maybe even a lifetime. For this reason, you may need to consult with a local child custody attorney long after the initial papers have been signed. Children grow, times change, and facts, factors, and living arrangements change. If you find yourself in any of these circumstances and you are concerned, or you need changed or updated orders, you should consider consulting a child custody attorney in Orange County to see how they can help. For example, any of the following things may occur:
- Either parent is moving or relocating or wants to relocate with the kids
- Substance abuse or domestic violence is taking place in a parent’s residence, possibly with a new spouse or significant other
- Changes in either parent’s income or health that affects their ability to maintain a stable home
- Either parent is remarrying
Please note that these are not the only reasons to modify child custody. Any concerned parent should consult with a lawyer about whether their parenting plan needs to be modified.
Does Your Ex Need a Monitored or Supervised Visitation Schedule?
Sometimes, it would be inappropriate for one parent or the other to have unsupervised time with their children. Maybe they are violent, maybe they have alcohol or drug addiction issues, or maybe that parent was arrested for some heinous crime. If even after these facts, it is still decided that that parent should have some form of visitation with the children, then it would be absolutely necessary to set up “Monitored” or “Supervised” visitations so that the afflicted parent is never left completely alone with the children. Short-term or long-term, you can establish a supervised visitation structure where another trusted adult is required to be present during the visits. These supervised visits can be as short a period or as long a period as you (or the judge, if you and your ex can’t agree) deem appropriate and safe for the children.
Need Help Explaining Visitation Agreements to Your Kids?
Below are helpful resource books that are well reviewed to help explain divorce and visitation schedules with your children.
Orange County Child Custody Attorney: FAQs
The following are some frequently asked questions we hear about common custody arrangements in Orange County. If you need legal advice or have questions about the specifics of your case, don’t hesitate to call us for a free case evaluation.
What is the most common child custody arrangement in Orange County, CA?
Typical custody arrangements truly vary from family to family. Joint custody is the default arrangement from the courts, especially when deciding legal custody. Sole physical custody with visitation is also common, with joint legal custody. Specifically, one parent generally has primary custody where the children live and go to school during the week, but the other parent has a great deal of time across the weekends, holidays, and summer.
Do children have a say in which parent gets custody in California?
In many instances, children will express a strong preference in visitation and custody. Some children simply want a voice in how often they visit the non-custodial parent, while others demand to live full time with one or the other. It is never a good idea to have these conversations with your children. It either empowers the child in a negative way, or puts an undue amount of negative pressure on a child to choose between one parent or the other, both of which the courts despise. When you ask a child which parent they want to live with, you are forcing that child to literally choose one parent OVER the other parent. This harms the child psychologically.
That being said, at some time or another as your children grow, they will begin to have an honest opinion about their parents and have an opinion they may choose to express, without your input or inquiry, what they prefer with regard to custodial time and visitations. California law says that when a child is 14, their “preference shall be considered by the court”. That does not mean they get to choose who they live with, it simply means the judge must consider their preference. Again, you never want to initiate these conversations, and you will want to downplay them if your child brings the issue up. But, be cognizant of their wishes and try to work with the other parent (co-parent) to do what is best for your children and your entire family unit.
One very important thought parents need to keep in mind: children VERY often tell both parents they would rather live with them. Children are not necessarily trying to manipulate the parents or the situation, they simply feel “cornered” and are trying to please the parent they are presently speaking to. If confronted at mom’s house, the child will likely tell mom he would rather live with mom and visit dad, but if dad asks him the same question, the child is likely to say he would rather live with dad and visit mom. Thus, the parents honestly report to the court that the child would prefer to live with them and they think the other parent is lying when they report the same thing. Be careful and do not ask your child to choose.
Who pays attorney fees in child custody cases?
Attorneys’ fees are usually the responsibility of whichever person hires them. However, in some cases, the judge may order your ex-spouse to pay your attorney’s fees, as well as legal filing fees. This is more likely in cases where one parent has a significantly higher income that the other, or in cases where one parent acts inappropriately or behaves in a “sanctionable” manner during the case. Child custody investigator fees are usually the shared responsibility of both parents.
Who has to pay child support in joint custody?
Child support payments are often a contentious subject in family law cases. The time you spend with your child is not the only deciding factor in who pays child support. It is common for the larger wage-earner to pay child support to the other parent even in cases of true 50/50 timeshare cases. Some elements the court might consider include
- Both spouse’s incomes
- How much actual time the child or children spend at each parties’ homes
- The tax filing status for each parent
- Other children’s expenses from other marriages
- Each parent’s assets, liabilities and debts
- The needs of the child
Again, even if you share joint custody, you may still need to make child support payments to your co-parent.
Who pays child support if grandparents have custody?
Child support payments help the parent or guardian who is providing for the child’s food, clothing, medical bills, school expenses, and more. When the child lives with a grandparent, both parents may be ordered to share the child support if the child lives with a separate guardian like a grandparent.
Can you lose custody for child endangerment?
Yes. Depending on the seriousness of the circumstances, you can lose custody of your child and face fines, mandatory treatment programs, and even time behind bars for child endangerment charges in Orange County. Child endangerment means that a parent or guardian has knowingly placed a child in a situation which puts their mental health, physical health, or safety at risk – even if the child is ultimately not harmed. Examples often include child abuse, drunk driving with a child in the car, refusing to seek medical care for a sick child, leaving a very young child alone at home, allowing a child to be cared for by someone who has a known history of abuse, and more.
Can you lose custody for not paying child support?
Not paying child support is a serious offense. Failure to pay child support can ultimately result in losing custody of your child.
Can I lose custody of my child for dating?
In the simplest of answers, no. Both parents are allowed to date new partners without losing custody of their children from a previous marriage or relationship. However, there are some additional factors to consider. If you or your co-parent begins dating someone who may endanger your child in any way, such as someone with a known history of abusive or reckless behavior, then there may be a case against you keeping custody of your child.
How can I get full custody of my child?
If you are concerned about your child’s wellbeing and you share custody with an ex-spouse, contact an Orange County child custody attorney to discuss those concerns in detail. The legal process is the only way to ensure full custody of and decision-making power over your child, because the OC courts presume that shared custody is generally in the best interests of a child. As a result, you will need to build a strong case with proper evidence and legal arguments as to why your child needs a different arrangement. The law offices of Pinkham & Associates can help.
Call an Orange County Child Custody Lawyer Today
If you have children and are contemplating divorce, or if you are worried about your child’s well-being under your current co-parenting arrangement, we at the law firm of Pinkham and Associates, are here to help. We can provide initial advice, help you develop a visitation plan, build up your case if necessary, and help you with all other aspects of your child custody situation. Contact us today for a free consultation.
