San Diego Family Law Attorney Answers California Child Custody FAQs
Frequently Asked Questions
If you are currently involved in divorce proceedings or have already separated and have questions about your custody rights in California, contact Huguenor Mattis, A.P.C. at (858) 458-9500. Our family law team can help you navigate the often complex and downright confusing system of laws governing child custody. We understand how difficult the process can be and are prepared to fully defend the best interests of you and your child.
Q. Who can get custody of a child?
A. Only certain individuals may petition for custody of a child, depending on the circumstances:
- Parents – The first choice in most cases.
- Grandparents – In the state of California, grandparents may seek custody or visitation provided certain criteria are met
- In Position of the Parent – Any individual who has assumed the role of a parent for a certain period of time and the court finds suitable in regard to the particular situation. This may be a step-parent or another family member.
Q. What rights do I have as a father?
A. The same as a mother. There is no legal basis for discrimination of one gender over the other in child custody cases. Fathers can be awarded the exact same rights as a mother in a child custody case. However, the court does outline three different categories a father or parent other than the biological mother can be: biological parent, alleged parent, and presumed parents. If there is a question of paternity, then you may be required to provide evidence of your parental relationship to the court, such as a DNA test, your signature on your child’s birth certificate, or court documents acknowledging your relationship.
Beyond this, the court awards custody rights based on the best interests of your child, your relationship with your child, and possible the relationship with the mother, if there has been any allegations or charges of domestic violence.
Q. Will the child custody arrangement affect child support in San Diego?
A. As with most states, the parent who will be spending the most time rearing the child and caring for their day-to-day needs will provide the least amount of child support. However, California courts will always consider the unique factors of each case before determining the proper amount. The factors include:
- Both parents' income at the time of the ruling
- The child's health expenses and whether or not they have special needs
- The cost of the child's education
- The amount of time each parent will spend with the child
Q. My child was born out of wedlock. How will the courts determine custody?
A. In the same manner as they would if the child had been born within the confines of a marriage: based on the best interests of your child and your relationship with your child. The courts will not take into account your relationship with the mother unless impacts your child. However, if the child was born from a one-night stand and you do not have a relationship with him or her, you will face an uphill battle to receive custody. The court may award visitation in order to establish a relationship between you and your child, but you will need the help a family law attorney to ensure your rights are protected.
Q. My former spouse is making false allegations of child abuse. What can I do?
A. Under California law, any claims of child abuse will be investigated in order to determine the best child custody arrangement for the child. However, the law also acknowledges that false accusations of abuse can and do happen, therefore, Family Code 3027.1 (a) allows the court to impose a fine on the parent who knowingly made a false accusation. The fine will account for the costs the accused parent has sustained as a result of defending against the charge, such as attorney fees. It is in your best interest to reach out to a reliable attorney to represent your claim and provide the insight and guidance you need.
Q. We can't agree on a custody schedule – what are our options?
A. Unfortunately, if you and your ex-spouse cannot come to an agreement that works for both sides, the courts will make the decision for you. You may work with a mediator to help you reach a plan that works for all parties involved. It is almost always better to work out the various details between each other. Contact a knowledgeable San Diego child custody lawyer to ensure that your rights are protected throughout the process.
Q. Can I get sole custody of my child?
A. It will depend on the situation. If one parent is proven to be a significant danger to the child's health and well-being, there is a possibility that his or her custody rights will be terminated. This may require a great deal of evidence, such as a potential conviction for a crime, or documented incidents of physical, emotional, or sexual abuse of the child. Even then, a judge may award visitation or supervised visitation before completely stripping the other parent of their total parental rights.
Q. What are the rules about moving away with joint custody?
A. California courts acknowledge that move-away situations can put intense strain on a parent’s relationship with their child. Sometimes one member must move due to their career, a changing living situation, or for new opportunities. However, parents with joint physical custody must abide by the rules of their custody arrangement.
That means if one parent wants to move away with the child, he or she must demonstrate before a California court why the move is in the best interest of the child. In turn, the other parent may argue that it is not in the best interests of the child. The court will attempt to find a middle ground that works for both parties, but their ultimate goal is protecting the child’s wellbeing and may deny or approve a move-away request based on it.
Q. Will my sexual orientation be an issue in the San Diego custody hearing?
A. Absolutely not. California state law expressly prohibits using sexual orientation as a factor when determining child custody between parents. Additionally, the court cannot consider a parent's religion, race, or physical handicap when making a decision about custody.
Q. Will a new partner affect my custody rights?
A. Not necessarily. California courts often do not take your relationship status into account when determining custody. However, if there are allegations of child abuse against your new partner, then the court may change your custody rights if it feels you are not protecting your child. Alternatively, if your relationship with your new partner is impacting your parenting time with your child, then your ex-spouse may have a case to have the custody rights modified.
Obtain a Strong Advocate in San Diego
When it comes to finding an attorney that will fight on your behalf and help establish a meaningful and mutually beneficial child custody agreement, look no further than Huguenor Mattis, A.P.C. We have the years of experience necessary to help you build a future that is secure for you and your children. Call today at (858) 485-9500.
- Statistics on Divorce: Who Is More Likely to Get Custody?
- Parental Presumption and Child Custody Laws
- When to File for an Emergency Child Custody Modification
- Family Court Services - San Diego Superior Court