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What Is Legal Custody?


What Is Legal Custody in California?

Legal custody refers to the legal right and responsibility of a parent to make major decisions about a child's upbringing. It is distinct from physical custody, which determines where the child lives.

Sole vs. Joint Legal Custody

There are two primary types of legal custody: sole and joint. Sole legal custody confers decision-making power to a single parent, whereas joint legal custody permits both parents to jointly bear that responsibility.

In most states, courts favor joint legal custody arrangements when both parents are deemed fit and capable. This approach ensures that both parents have a say in significant aspects of the child's life, such as education, healthcare, religious upbringing, and extracurricular activities. However, having joint legal custody doesn't necessarily mean every decision requires mutual agreement.

Some parents may choose to informally divide decision-making based on specific areas (e.g., one parent has the final say on education, while the other on healthcare). The key aspect of joint legal custody is that both parents have a right to be involved in these major choices impacting the child's well-being.

Do California Courts Have a Preference for Joint or Sole Legal Custody?

In general, the courts prefer to award joint legal and physical custody whenever possible. However, their priority is always the best interest of the child. They will consider each parent’s health, whether there is a history of physical or emotional abuse, the nature of each parent’s relationship with the child, and a host of factors to determine what is best for the child’s welfare.

Joint Legal Custody & Emergency Decisions

A common question asked concerning joint custody is: Can one parent with joint legal custody make major decisions alone in an emergency? If you have joint legal custody, your custodial agreement should outline what decisions parents must consent to together, how discussions regarding these choices will be held, and when parents can make decisions separately.

Many parents agree that neither party is required to discuss emergency medical decisions. However, notifying the other party is still required (or encouraged).

Does Domestic Violence Affect Legal Custody Decisions in California?

Yes. As we mentioned, the best interest of the child takes precedence when it comes to custody decisions. Judges will not give physical or legal custody to a parent who has committed domestic violence (in most cases).

It is important to note that allegations of domestic violence do not hold the same weight as a conviction for such an offense or a restraining order. If a parent has a conviction or a restraining order against them because of abuse, Family Code section 3044 applies, and the judge must complete an eight-factor test that includes the following questions:

  1. What is in the child’s best interest?
  2. Has the convicted party committed any other acts of domestic violence?
  3. Has the person followed the terms and conditions of any restraining orders in their entirety?
  4. Has the person completed a year-long batterer intervention program?
  5. Has the person finished an alcohol or drug program (if court-ordered)?
  6. Has the person finished a parenting class (if court-ordered)?
  7. If applicable, has the person adhered to the condition of their probation or parole?
  8. Does the person still have a firearm or ammunition (which would violate a restraining order)?

A professional or evaluator may also weigh in on the decision of custody. Regardless, the judge must complete this test and then make a custodial decision. The court, in many cases, awards sole physical and legal custody to the non-abusive party, but the other parent may still be awarded visitation.

In cases where domestic allegations arise, the court will consider the validity of the claim and decide what is best going forward. Should the judge decide to award custody to the accused parent, they must provide an explanation for that decision.

How Do You Deal with Joint Legal Custody Violations?

Joint legal custody arrangements require cooperation and open communication between parents to ensure a child's well-being. However, situations may arise where one parent withholds information or makes decisions unilaterally, hindering the other parent's ability to participate in crucial aspects of the child's life.

To address such violations, you should consider the following:

  • Direct communication with your co-parent. The first step should always be attempting to resolve the issue directly with your co-parent. A calm and professional conversation outlining the specific concerns, such as a lack of updates on school or medical matters, might be enough to rectify the situation.
  • Leverage court orders with third parties. If the school is hesitant to share information due to the lack of a clear custodial agreement, provide them with a copy of the court order outlining joint legal custody. This clarifies your right to receive updates. Similarly, present a copy of the court order to doctors, therapists, camp counselors, or other third parties to ensure you receive relevant information about your child.
  • Take legal action. When communication attempts fail or the violations are severe, involving the court might be necessary. Some potential legal avenues include:
    • Contempt of court. If the co-parent's actions are a clear violation of the custody agreement, filing a contempt motion with the court can enforce compliance.
    • Modification of custody. If the current arrangement is no longer conducive to the child's best interests due to repeated violations, seeking a modification of custody may be warranted. This could involve requesting sole legal custody or adjusting the decision-making process.

Some important considerations include:

  • Document everything. Maintain a detailed record of communication attempts, missed exchanges, and any evidence of withheld information. This documentation will be crucial if legal action becomes necessary.
  • Consult with an attorney. An experienced family law attorney can advise you on the most appropriate course of action based on the specifics of your situation and the severity of the violations. They can also help you navigate the legal proceedings and represent your interests in court.

Do I Need a Lawyer to Get Legal Custody in California?

There are many benefits to retaining a lawyer for your custody case (whether you disagree on physical or legal custody terms), including:

  • Objective guidance. Custody disputes are often fraught with emotion. A lawyer can provide unbiased advice, helping you make sound decisions that prioritize the best interests of your child.
  • Skilled negotiation. Lawyers are adept at negotiation, working towards a custody arrangement that is fair and beneficial for both you and your child. In many cases, this can lead to a resolution outside of court, saving time and money.
  • Meticulous documentation. Legal proceedings involve a multitude of documents and deadlines. An attorney ensures all paperwork is completed accurately and submitted on time, preventing delays or complications.
  • Courtroom advocacy. Should your case go to trial, your lawyer will represent you effectively in court, presenting evidence and arguments that strengthen your position.

Counsel You Can Count On

Understanding the complexities and emotional weight of custody cases, the team at The Neshanian Law Firm, Inc. is dedicated to providing clients with exceptional legal representation and unwavering support throughout the entire process. Our team of experienced family law attorneys possesses a deep understanding of California child custody laws and a proven track record of achieving successful outcomes for our clients.

We prioritize clear communication and collaboration, ensuring you are fully informed and involved in every step of your case. Our commitment to excellence is reflected in the positive feedback we receive from our clients:

  • Compassionate approach. Clients consistently describe our team as "wonderful" and "caring," recognizing our understanding of the emotional challenges associated with custody disputes. One of our previous clients even went so far as to say: “I could write a book on why Amy Neshanian deserves MORE than 5 stars but I will save the time and say that she is worth every penny." - Kimberly
  • Results-oriented. We are committed to achieving a favorable outcome for your case. Clients value our team's effectiveness and honesty, highlighting our reputation for being "ethical" and "reliable."

When facing a custody case, you deserve a legal team you can trust. Our team understands the significant impact these cases have on families and is committed to guiding you through this challenging time with compassion, experience, and a dedication to offering effective counsel.

Discuss your custody case and/or custody-related questions with a member of our team. Call (949) 577-7935 and schedule a consultation.

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