Child custody and visitation is one of the biggest problems in divorce proceedings, and things get murkier if the divorce is acrimonious. Warring couples tend to fight and discredit one another, so a family court judge will rule in their favor when determining a shared or primary custody arrangement. California law encourages joint physical and legal custody so children can have access to both parents, but this is not always feasible.
Parents may not always agree to this default arrangement mainly when the divorce is contentious, or there are other mitigating factors such as job opportunities. The Los Angeles Divorce Lawyer has a wealth of experience handling divorces where children are involved. We do everything possible to help our clients reach an amicable custody plan.
What Factors Does the Court Consider When Determining Custody?
While shared custody is the gold standard after marriage disillusionment, there are scenarios where this arrangement is not applicable. If it ceases to work, another round of deliberations is necessary to devise a new plan. For instance, one partner could be moving out of state after the divorce, or they could relocate later on to pursue work opportunities or another relationship. The family court usually considers the following factors when allocating child custody:
Child's best interests – Divorce affects kids in many ways, and the courts are always keen to ensure their needs are prioritized above all else. This approach will ensure that their lives are not disrupted any further. Therefore, the parent who is better placed to mind the child's interests will be granted custody.
Child’s wishes – California Family Code 3042 (a to d) stipulate that the child is mature enough (usually 12 years and older) to choose their preferred parent. A child escaping discipline, yielding to pressure, or parental alienation is not proper grounds for honoring their choice.
Record of domestic violence – Instances of domestic abuse are alarming, and the court will not grant custody to the aggressor. If your partner has physically, verbally, or emotionally abused you or the kids during the marriage, a family court judge will not release the kids to them.
Evidence of drug use – Parents who have nurtured bad habits like using controlled substances inside or outside the home, are generally deemed unfit to raise children. If you have battled with substance abuse, entering a rehabilitation program could bolster your chances of getting ample visitation.
Parents' emotional and mental stability – Anger issues, drug and alcohol dependency, mental health conditions like depression and bipolar disorder could deter a parent from getting custody. A Los Angeles family court will insist on awarding custody to a mentally and emotionally stable parent.
Physical vs. Legal Custody
Child custody deliberations must outline the physical and legal rights of each parent, so no confusion or unnecessary arguments are moving forward. There are fundamental differences between physical custody and legal custody of children, and you have an imperative to understand them before signing any document.
When it comes to physical custody, there are three options you can pursue:
- Joint custody – The children are allowed to live with both parents equitably. This arrangement does not necessarily mean splitting the time down the middle but instead having kids spend decent amounts of time with both parents.
- Primary custody – The children reside with one parent for the majority of the time and visit the other parent as per a schedule that is agreed upon in court. If you have primary custody and wish to relocate, the other parent is likely to contest this decision.
- Sole custody – Children live with one parent and visit the other parent once in a while. This arrangement is ideal in situations where one parent has relocated after divorce.
Legal custody, on the other hand, stipulates which parent has the right to make crucial decisions about the kids' education, religious practices, medical treatments, extracurricular activities, dental visits, etc. This arrangement can happen in two ways:
- Joint legal custody – Both parents have the right and responsibility to make decisions regarding the kids' health, education, and other vital events. Parents don't have to always agree on a resolution, and this is why excellent communication comes in to quell arguments.
- Sole legal custody – Only one parent has the mandate and obligation to make significant decisions about the wellbeing of the kids, and their education.
A California court will examine the prevailing circumstances meticulously before deciding upon physical and legal custody. Be that as it may, one parent may propose moving away with the children, and this has implications in divorce court.
What are the Upsides of Relocation?
Moving outside California after divorce is unthinkable, but anything is possible once the petition is filed. You cannot hold back your ex-partner if they wish to move elsewhere. They could have landed a new job that would benefit the kids, such as starting a college fund or pay for extracurricular activities like piano lessons.
California Family Code sections 3400-3465 stipulates that a California court has jurisdiction to impose custody and visitation decrees of other states or countries. This provision also grants a Los Angeles court power to modify custody and visitation orders in other states or countries. If the move is within California and still within driving distance, visitation plans can go as scheduled without having to evoke this family code.
Moving with a child could improve their standards of living. The parent could buy a home in the suburbs as opposed to staying in a small apartment in a city. It can also bring the child closer to the extended family so they can interact more often during the weekends, which is great for their emotional adjustment after divorce.
Other good faith reasons for relocating are advancing your education to increase your earning power. You could also be trying to land a great job in a different line of work. Los Angeles Divorce Lawyer advises clients to be open-minded when relocation is brought up during divorce proceedings or after the decree is granted.
What Factors Influence Child Custody Relocation?
Age and maturity of the child – Family Code 3042 allows children who are at least 14 years to speak to the presiding judge about their preferred living situation. This conversation can unfold in open court or the judge's chambers and have a court reporter record the testimony. Listening to the child's wishes is useful in the final ruling, but there are other considerations at play.
Reason for the move – If the parent is moving for economic opportunities, the court may deem this relocation essential to the betterment of the child's upbringing. Moving to a different city to live with a potential partner is not justifiable reasons for disrupting a child's life.
Geographical hurdles – It is easier to sell the idea of moving to another city or County within California than crossing state lines or moving to a different country altogether. Moving within reasonable distance means the relationship with the non-custodial parent will only be affected minimally, if at all.
Existing custody arrangement – If the proposed relocation is happening after the divorce is granted and custody sorted out, a judge will start by reviewing the current custody arrangements. The non-custodial parent still has parental rights such as visitation that should not be infringed upon by the move.
Social impact on the child – Even if custody arrangements have not worked out, the current plan accords the kids significant social interactions. A relocation would alter these relationships. Do they have a thriving social life in the existing neighborhood? Having to abandon their favorite little league team or not attend classes at the local theater etc. will have a negative social impact.
Psychological impact on the child – Leaving one parent and moving to a new home far away is hard to process primarily for children in the impressionable years. They will be forlorn missing the other parent, larger family, friends in the neighborhood, as these emotional ties weaken.
Impact on education – Going to live outside the current schooling district means having to switch schools, and this could potentially interfere with the kids' education. If you can demonstrate that relocating will not affect their knowledge, or it will elevate it, the court may rule in your favor.
When is Relocation Impossible?
As we mentioned earlier, relocation can happen well after the marriage ends as one parent decides to start a new life elsewhere alone or with another partner. However, "just-looking" for a job or considering going back to college is not enough reasons for the judge to greenlight the move. We have seen spouses get back at their separated partners by moving away to punish them and keep them away from the kids.
Other scenarios make such moves impractical. Moving away to another country for work would mean uprooting the child from their school, social circles, etc. These elements form an integral part of their comfort zone. The court seeks to act in the best interest of the child, and disrupting a child's life to this degree is not suitable for their wellbeing.
The parent who wishes to relocate with the child has an imperative to prove that doing so will yield more benefits than harm. Similarly, the parent who doesn't support the relocation must establish this move would adversely affect the child. The burden of proof is high, and we are ready to leverage our expertise in child custody cases to help you win.
Please note, if a non-custodial parent has neglected their parental duties such as forgetting their visitation schedule, it would be frivolous to oppose the move. The custodial parent will present evidence of neglect and argue that taking the kids is not denying you parental rights since you have neglected them so far.
California law, however, does not allow the judge to consider absenteeism under these circumstances:
- If the absent period was short, e.g., a week or so.
- The absent parent is still interested in retaining custody or visitation
- The absent parent is making reasonable efforts to keep in touch
- Their actions are not consistent with willful child neglect
The Los Angeles Divorce Lawyer has witnessed cases where an absent parent puts up a fight to deter the custodial parent from moving with the kids. They claim fear of not having a relationship with the kids, but their actions prove otherwise. They could be jealous of your newfound fortune and are using court battles to frustrate you enough that you renege on this decision.
As your attorneys, we shall gather evidence to show parental neglect, so they don't use this feeble excuse to interfere with your life plans. We shall introduce character references as part of discovery to demonstrate you are nothing short of an exemplary parent.
Preparing for Child Custody before Relocation
Family courts frown upon parents who fail to disclose plans to relocate before or during the divorce. Therefore, if you think relocation is imminent, we advise that you share this information early on in the divorce process. We have seen breadwinners pursue promotions at their job or find new posts so they can provide for their children better.
Non-working parents also find it necessary to enter the labor force so they can provide for the family, especially in situations where child support is not sufficient. The couple could have accumulated tons of debt during the marriage that forced them to offload some properties to pay off creditors. To this end, financial health is significantly impacted, and supporting two households complicates things further.
If you are contemplating a relocation for whatever reason, we strongly recommend that you inform the court in good time so the judge can make informed choices. Neglecting to disclose this monumental decision would be seen as acting in bad faith, and the blowback could hurt your custody plans. In the end, a judge will rule in favor of a parenting arrangement that provides the most stability during these tumultuous times when kids are adjusting to the new family dynamic.
Investigate the new location to gauge its suitability for your children. For instance, are there good schools in proximity to your new home? What about after-school activities that your children were pursuing? Consider all the factors that will affect the kids' upbringing, so you are ready to answer questions from the other parent.
Consider prolonged vacations with the non-custodial parent, so they too have adequate time with the kids. Their visitations will be less frequent, so allowing them more bonding time is a wonderful compromise. You could pay for the kids to travel, or they could meet the other parent at a convenient location.
How Can a Divorce Lawyer Help with Child Relocation?
Preparing to move residences after the divorce decree is granted and informing the court is not enough to guarantee the court will approve the relocation. You need to consult with a qualified divorce attorney who is adept at handling child custody under varied circumstances, including where relocations are involved.
Our intervention starts by carefully evaluating that case, so we understand how each parent interacts with the child. We learn about concerns over the child's safety and wellbeing and discussing parenting in the future. If the custody and visitation status quo has not worked out as planned, this is your chance to modify things. If your partner proposed the move and he or she inevitably relocate, our lawyers can help you get modifications for the following:
- Child custody arrangements
- Visitation schedules
- Support orders
We shall petition the court to modify the custody arrangement in the light of the move. If your partner is moving too far away, we can argue that the kids are better off staying behind with you as the primary caretaker. This proposal would require drafting a new visitation schedule, so the other parent still has access to the children, geographical distance notwithstanding.
Altering child custody to grant you primary care would also necessitate amending the child support orders. The higher-earning parent will need to pay child support and additional factor expenses like children traveling during school holidays to spend time with the non-custodial parent.
Family Code section 3180 acknowledges the possibility of reaching an amicable custody plan to accommodate a relocation. Our lawyers can help you file a move-away petition and mediate, so things go smoothly.
Finding the Best Los Angeles Divorce Lawyer Near Me
Child custody arrangements are an essential part of the divorce, and the court typically rules in the best interest of children. Parents can use unsavory tactics to win custody or deny the other parent access to the children. If you are considering moving away, you deserve only the best legal representation to ensure things go your way.
If the other parent is seeking to relocate and take the kids away, we can help you thwart this move. Your custody and visitation rights should not be trampled upon by your ex-partner, and that’s why you need a great lawyer by your side.
The Los Angeles Divorce Lawyer has excellent experience helping parents like you in these type of situations, and we have succeeded in arriving at agreeable outcomes. Regardless of who proposed the move, you want the kids to have the best living situation, so nothing interferes with their development post-divorce. Contact us on 310-695-5212 to speak to the best legal minds in Los Angeles.
