Divorces and separations are often messy, unpleasant affairs. When children are involved, the situation becomes exponentially more difficult. This can be especially true when one parent is unfit to care for a child, dealing with addiction, or abusive. In such cases it can become necessary for the other parent to seek full custody of that child. This post details how to get full custody of your children in Orange County, California. Continue reading to learn a little more about the custody process and some of the terminology involved.
Types of Sole Custody
Before getting into how to get full custody of your children, it is necessary to understand what “full custody” means in a legal sense. Legally speaking, there are two types of full, or sole custody:
- Sole Legal Custody: This refers to the decision making process of being a parent. A parent with legal custody bears responsibility for making decisions about the child’s education, health and welfare. In many divorce situations both parents share legal custody — this is not the case with sole legal custody. In cases involving sole legal custody, only one person bears legal responsibility.
- Sole Physical Custody: This type of custody refers a child’s daily routine. This includes: daily meals, trips to and from school, extracurricular activities, hygiene, bed time, doctor visits, etc. While there are many cases in which parents enjoy joint physical custody (i.e. the child might spend a few nights with mom, then a few nights with dad each week) this is not the case with sole physical custody. With sole physical custody, only one parent is responsible for all aspects of a child’s life.
In California, in order for a parent to obtain sole physical and legal custody of a child, that parent will need to present “persuasive evidence” to the family court that sole custody is warranted. Family courts always try to put the best interests of the child first, and this usually means granting both parents some access to the child. However, there are certain factors that will make it easier for one parent to gain sole custody. Continue reading to learn about these factors.
Factors Affecting How to Get Full Custody of Your Children
According to California Family Code Section 3044,
“upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child.”
Put simply, a spouse who’s committed an act of domestic violence can be denied custody of their child, and the other spouse granted sole custody. While a spouse who has been convicted of domestic violence will have a criminal record accessible by the court, it is also a good idea to document any cases of abuse and maintain a list of potential witnesses. In addition, don’t hesitate to report any instances of domestic abuse.
While there are steps an abuser can take to attempt to show the court he or she has changed, if the abused spouse feels that the child might be in danger, he or she can present further evidence to support an order of sole custody.
Drug and Alcohol Abuse
In some cases, a spouse that abuses drugs and alcohol can be denied custody of their child, and the other spouse may be granted sole custody. However, while it might have been common during the marriage or relationship to witness your spouse frequently taking drugs or alcohol, this in and of itself is generally not enough to convince a court to grant you sole custody.
An order for sole custody will be ordered only if persuasive evidence is given showing that the other spouse engaged in habitual, frequent and continual use of alcohol or drugs. Should a pattern of drug or alcohol use be established, the other parent might be granted sole custody of the children.
The question that many folks have is what evidence is required to demonstrate a habitual, frequent, or continual use of drugs and alcohol? While the law doesn’t specify much, it does mention that a conviction within the previous five years for illegal use or possession of a controlled substance could qualify.
It’s important if you have children and are dealing with a spouse who is addicted to drugs or alcohol, that you discuss your options with a good family lawyer. While courts in Orange County, CA, are hesitant to grant sole custody to one parent over another, there are cases where the child’s best interest and safety call for an order of sole custody.
Just as explained in the section on domestic violence, sole custody can be granted to a parent when the other parent has perpetrated acts of child abuse. California Family Code § 3044(a) creates a “rebuttable presumption” that an award of sole or joint physical custody to a person who has perpetrated domestic violence is detrimental to the best interest of the child. This section of the law specifies violence against the child or the child’s siblings within the previous five years.
A rebuttable presumption means that a person found to have committed child abuse could lose his or her right to custody if the court isn’t satisfied by answers to the following questions:
- Has the perpetrator successfully completed a batterer’s treatment program?
- Have they completed a drug or alcohol counseling program?
- Have they complied with the terms of probation or parole (if applicable)?
- Have they complied with the terms and conditions of any restraining order?
- Have they committed any further acts of domestic violence?
Again, if you are seeking sole custody of a child (or children) it’s important to have a qualified family attorney guide you through the process. It is difficult to obtain full custody of your child, even in cases of abuse or domestic violence, so you want to make sure you have the help of a professional.
If a parent is shown in court to have abandoned their child, the court might issue an order of sole custody in favor of the other parent. Such a situation might occur when one parent has been the sole caregiver for a child (or children) and the other parent has made little effort to provide financial support for the children, and has made little effort to be emotionally involved in their lives.
It’s important to remember however, that there are steps the abandoning parent can take in order to improve his or her standing with the court and eventually get partial custody. In order to do this, he or she will need to make more effort to be a part of the child’s life. This could begin with short, overnight, or supervised visits.
In some cases, a parent who has abandoned the children might be granted temporary visitation by the court, but simply use the court’s order to manipulate the situation. In other words, the parent doesn’t really have an interest in the child as much as using the court’s order to manipulate the other parent.
If the primary parent feels the abandoning parent does not have the child’s best interest at heart, he or she should discuss an immediate child custody and visitation modification with their attorney. If granted, the abandoning parent will lose leverage and be less able to manipulate the situation.
Contacting a Family Attorney
Whatever your child custody situation is — whether you’re dealing with a drug addicted former spouse, an abuser, an absentee parent, or you’ve been wrongly accused of being a bad parent, it’s highly recommended you speak with a lawyer. He or she will explain how to get full custody of your children in California. You should hire the services of an Orange County attorney when going through divorce or custody proceedings, as such an experience can be highly emotional and stressful. It’s just common sense that you should have an objective expert in the law on your side. To see how a family lawyer can help you, contact our office.