Santa Rosa Family Lawyer Blog

During a divorce, it is important for parents to keep in mind the best interests of their children. For many, that means agreeing to a joint-custody arrangement where the children live with both of their parents. Yet while joint custody sounds straightforward -- children live with their parents equally -- it actually varies depending upon the circumstances. A California family law attorney can help you understand what it involves, so you can work out the best arrangement for you and your children.

What is Joint Custody?

When people think of joint custody, they often think of children split between the parents 50-50. In fact, there are several types of shared custody. The 50-50 scenario takes place in a "pure" joint custody situation, where neither parent has sole legal or physical custody of the child. It may also take place in a joint physical custody arrangement, where each parent has "significant periods of custody," so that the children have "frequent and continuing contact with both parents." However, joint physical custody does not require an even split -- just that they children live with both parents. Then there is joint legal custody, where parents share the decision-making responsibilities on issues like their children's education and welfare. There may also be divided custody arrangements, where each parent has sole custody of one of the children.

How Will My Custody Situation be Determined?

As we mentioned in earlier posts about child custody, courts generally look at what is in the best interest of the child. In a best-case scenario, the divorcing spouses will have already come up with a custody arrangement that just needs court certification. When both parents have already agreed to a joint-custody arrangement, there is a legal presumption that it is in the best interest of the child. Otherwise, the courts will look at the child's health, safety, and welfare; any history of abuse by one of the parents; the nature and amount of contact between the child and each parent; whether one parent uses illegal substances; whether the parent can adequately care for the child; and the child's ties to the community.

Courts no longer automatically award custody to the mother. A judge could decide that based on the above, the father should be the main custodial parent even in a joint custody situation.

How Can I Ensure That Our Joint-Custody Arrangement Is Successful?

Parents who have sat down and discussed an arrangement before coming to court are most likely to be successful. The animosity often present in custody situations will be minimal, ensuring that the child is happier and more secure. Otherwise, the most important thing is for both parents to provide a safe, stable home environment within or near the community where the child has grown up. Many arrangements will specify that your child must go to school in a certain district. If one parent needs to relocate for a job, that can seriously impact the joint-custody arrangement. If you must relocate, you should petition the court to have your joint-custody agreement modified.

Whether to pay spousal support is one of the most contentious issues in a divorce situation. For the first time, both spouses face having to live alone and support themselves, as well as children. After arguments over bank accounts and child custody, often the last thing a spouse wants is to worry about supporting the other spouse for years, if not a lifetime. Yet the spousal support issue is shrouded in a lot of myths that make it seem more frightening than it really is. A California family law attorney can help you learn the facts and maintain a good relationship with your ex-spouse.

Spousal Support is Not a Factor in Every Divorce

Just because you are divorcing does not mean you or your spouse will have to pay spousal support. In fact, in all but a tiny fraction of cases (10 to 15%), spousal support is not even awarded. And when it is awarded, the divorcing spouses had to first meet several conditions. The key is whether both spouses earn enough to maintain the standard of living they grew accustomed to during marriage. A family court judge considers whether the "supported" party has marketable skills, whether the supported party was unemployed for long periods of time to be a stay-at-home parent, the length of the marriage, the extent to which the supported party helped the "supporting" party obtain an education, and other factors. The list of factors is long, and as you can see, most divorcing couples do not meet the standards requiring spousal support. So don't feel that you can't get a divorce because you aren't able to make expensive support payments. The chances are high that you will not need to make any at all. If you do, they do not need to be a burden.

You Would Not be Required to Support Your Ex-Spouse Forever

There are cases of permanent spousal support, but in California, spousal support is generally meant to be "rehabilitative," until the other spouse becomes self-supporting. The law claims that it must be within a "reasonable period of time": usually half the length of the marriage, unless the marriage has lasted 10 years or longer. You can also stop paying support when your ex-spouse remarries, or, inevitably, if your ex-spouse predeceases you.

If Your Financial Situation Changes, You Will Not Need to Keep Paying the Same Amount

If you suddenly lose your job, or find a lower paying job, you do not need to keep making the same fixed payments to your ex-spouse. Instead, you could petition the family court for a temporary abatement, or for permanently reduced support payments. Similarly, if your ex-spouse starts to earn more money, you can seek to have your support payments reduced or stopped altogether.

Your Ex-Spouse Must Try to Find Employment

If your ex-spouse does not try to find employment, you can seek a vocational evaluator to examine his or her skills. The court might then decide to terminate your spousal support payments if you can show that your ex-spouse is purposely not looking for work. In some cases, an ex-spouse might truly be disabled. Then it would be best to have a medical evaluation done to determine whether your ex-spouse can do employment that meets his or her limitations.

It is a common belief that women are the more capable parent and child caregiver. Historically, the public has stereotyped the mother's role as critical to a child's physical, emotional and social development. Alternately, the father's customary role was the supplying of food, shelter, clothing and acting as a disciplinarian. His position in the home rarely involved the direct care and nurturing of the couple's children. Because of these long-established biases, when a couple divorced the mother usually received custody of the children.

California family courts no longer embrace the traditional model of parental roles and view the approach as antiquated. Rather than favoring one parent over the other, California family courts have adopted a more balanced and evolved philosophy that guides child custody awards. This viewpoint requires that custody determinations be based on only what the evidence demonstrates is in the best interest of the child. In this stance, the role of both parents is critical to the overall development and well being of the child.

Child custody battles often have devastating effects on both parents. However, in a heated and prolonged custody battle, your child is the person who suffers the most. Because of the potential long-term negative effects on your child, California family courts frequently disfavor those parents who attempt to alienate their child from the other parent. Parental alienation occurs when one parent tells lies to their child about the other parent, thwarts the other parent's visitation time or engages in other behaviors that could cause the child to lose trust and respect for the non-custodial parent. Prevailing in a custody dispute requires the presentation of only truthful, objective and verifiable evidence. Making false allegations of child abuse, neglect, endangerment or other questionable behaviors will weaken even the most solid of child custody cases. Alternately, the court will favor the parent who consistently demonstrates that they are in the best position to assist the child in fostering a positive relationship with the opposing parent.

Several factors can influence the father's likelihood of success in a child custody case. The father must demonstrate to the court his readiness to assume the role of primary custodian. The odds of winning are higher if the father can show a history of gainful employment and job stability. To gain custody the father must secure and maintain a safe and sanitary residence that can adequately accommodate the needs of the child. Additionally, the court may ask to review the father's plans for childcare for the times he is at work, medical care arrangements and more.
During custody disputes, the court scrutinizes the character of both parents. It is best that personal conduct is unmarred. Those individuals with a history of criminal convictions, drug and alcohol abuse problems, untreated mental illness and domestic violence rarely receive a custody award.

Statistics demonstrate that if a father's personal conduct is unmarred and he can prove that he is ready to take on the task of primary caregiver, he can, and often does prevail in a child custody dispute. Sadly, many men who desperately seek this custodial role give up prematurely. They fear and erroneously think that the family courts favor the mother. Moreover, many fathers simply stop the custody battle because they cannot afford the mounting legal fees, the costs associated with court appointed professionals, cannot take the time off work for court hearings and more. As fathers become more educated, they will realize that that they do have good odds of gaining custody of their children. However, they must persevere in the legal proceedings and not give up prematurely.

The California family court has evolved and no longer views the mother as the only suitable caregiver for children. Today, the family court views the father's role as equally important. Within the current legal system in California, fathers are encouraged to step up and play a more active role in their child's lives. For fathers, becoming the primary custodian is no longer an unachievable goal. However, once the responsibility is obtained, the custodial parent has an obligation to foster their child's relationship with the non-custodial parent. After all, a positive relationship with both parents is in the best interest of the child.