Fighting Over Custody In California: Temporary, “Stolen”, And Final Custody

Fighting Over Custody In California: Temporary, “Stolen”, And Final Custody - San Jose, CA

This article discusses child custody arrangements and how they are reached in California. Child custody refers to which parent(s) have the role and responsibility of caring for and making decisions for a child, and it is often the most contentious and stressful aspect of divorces. It is vital to understand the family law concepts that help determine both temporary and final custody arrangements. This article focuses on:

  • How temporary custody arrangements are reached and the factors that determine them.
  • Why and how some parents “get ahead” by simply taking off with the kids before issuing divorce papers.
  • The final custody arrangements that are available in California family law.

How Is Temporary Custody Determined?

Temporary custody is any custody arrangement that is made under the assumption that it is for the short term only. They can occur at several stages during the divorce process and there are a large number of factors that go into determining who gets temporary child custody. The overall guiding principle that always applies to court decisions about custody, however, remains unchanged: what is in the child’s best interest?

In California, there is a presumption that frequent and continuing contact with both parents is in the child’s best interest. And will generally thus favor shared custody arrangements. Nevertheless, if either parent has a reason to think that having an equal timeshare is not in the child’s best interest, they can express that to the court, and the court can make that determination.

What Is The Default Temporary Custody In California Family Law Courts?

When you’re establishing custody for the very first time, however, if the case is just beginning and there are no agreements or orders yet, then the court can also make a temporary arrangement ruling. This is just to get the parties through to mediation so that there is an answer for what happens with the children during that time.

In most such circumstances the court will simply turn to the status quo. If the parties have been living apart for some time and had some kind of informal agreement or arrangement, usually, the court will just leave that arrangement in place unless there are any risks brought up that would make that not in the child(s)’s best interests.

Initially, to establish or change to a new custody arrangement either party needs to file a motion with the court requesting it. After that, a hearing date is given, and both parents are usually required to attend mediation. Only if mediation fails will the court make any orders.

What Is The Difference Between Temporary And Permanent Custody?

The big difference between temporary custody and permanent custody is the burden of proof required to be able to modify a custody order (and this doesn’t include timeshare). With permanent custody orders, you first have to show that there has been a significant change of circumstances before the court will even entertain a request to modify custody.

A significant change of circumstances could include:

  • A parent moving.
  • A parent failing to follow the custody order for an extended period of time.
  • A parent suffering from mental health issues or substance abuse issues.

It has to be something fairly large and usually should have occurred over some time for the court to consider it serious enough to modify a final custody order. A temporary custody order, on the other hand, does not require any such significant change to justify filing for a change. This is a good thing because sometimes a temporary arrangement can be the result of underhanded tactics by one party.

Can My Spouse Take Their Children From My Home Without My Permission And Then File For Divorce?

Unfortunately, within California law, one spouse can remove the children from a shared household before filing for divorce. While both parties are married, there is a presumption in the law that either parent can do more or less as they wish.

This is one reason why it is always recommended for a party that if there is a decision to start living separately, then you should file for divorce immediately. This applies even if there is hope that there may be reconciliation.

There is, after all, no restriction on undoing a petition for divorce if you can work it out later. Until a petition has been filed for divorce, however, there is little legal recourse or ramifications if your spouse takes the children and goes elsewhere, which is a really scary prospect.

If the other parent has taken off with the children, it makes your situation a lot more difficult because you are now behind. The police cannot do anything for you. There are no kidnapping charges because there is no order or law saying that a parent cannot do so. You have to go and file a motion in court, have a judge make these orders, and then be able to impose some kind of enforcement to get your children back. Assuming you know where they are.

Therefore, it is always important to get those legal rights established quickly when you are going through a divorce. Otherwise, you may have no recourse if the other parent chooses to take the children and leave or refuses to communicate or share them. In either case, having the advice of a family law lawyer experienced with child custody arrangements is essential.

What Are The Different Types Of Final Child Custody Orders Recognized In California?

In California, the laws provide for (more or less) two kinds of final, or long-term, custody.

First, there is sole custody, meaning that one parent has a majority of the time with the child and makes all the significant decisions. Then there is joint custody, in which time with the child(ren) is shared, as is responsibility over decision-making.

There’s no set time proportion threshold for the distinction between joint and shared custody. The closer you get to equal sharing, the more likely it is that the court is going to recognize that as having joint custody.

Joint custody means, more or less, that both parents spend significant time with the children. Therefore, even if parents live in two separate places and the children live with one during the school year, and then spend weekends and holidays with the other, that can still be joint custody.

As a result, custody arrangements can vary widely, and take a great deal of time to negotiate and settle on. Even if you believe your ex has the child and your best interests in mind, it is always a good idea to hire an experienced attorney during these negotiations. After all, a small “mistake” or error could easily be exploited later, and be quite difficult to change.

For more information on Determining Child Custody In California, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (408) 909-4586 today.


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