Child Custody

There are two types of custody: legal and physical custody.

Legal custody allows a parent to make decisions about a child’s health, education, and welfare.

Physical custody is the determination of which parent a child lives with. 

• “Joint custody” means that both parents have joint physical custody and joint legal custody. (Cal. Fam. Code § 3002).
• “Joint legal custody” means that both parents share the rights and the responsibility to make decisions relating to the health, education, and welfare of a child. (Cal. Fam. Code § 3003).
• “Joint physical custody” means that both parents have significant periods of time where the child lives with them and is cared for by that parent. (Cal. Fam. Code § 3004).
• “Sole legal custody” means that one parent has the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. (Cal. Fam. Code § 3006).
• “Sole physical custody” means that a child resides with and is under the supervision of one parent, subject to the power of the court to order visitation. (Cal. Fam. Code § 3007).

Temporary custody orders, or pendent lite orders, provide short-term solutions to parenting disputes. Temporary orders are determined by filing a motion, called a Request of Order, which is heard during the pendency of a matter, rather than awaiting Trial at the end of the proceeding.

To request temporary orders, you must file a Request for Order and the Court will assign a hearing date within a few weeks. The custody hearing is often a mini trial, where the Court will hear arguments and take evidence on the best interest of the children.

Temporary orders determine the custody and visitation schedule immediately and will usually stay in place until a final agreement is reached or until a Judge issues final orders after trial.

Because temporary orders can heavily influence final orders, it is imperative to have the right attorney from the start. The attorneys at Cottle Keen Lopiccolo & Heyde are skilled at helping clients obtain temporary orders in their best interest and that will have a positive impact on the final resolution.

Final orders can be reached in two ways. Preferably, the parties come to an agreement and have a Judge approve and finalize the orders. Alternatively, a Judge makes ruling based on the evidence presented at trial.  

A final order will last until the child turns 18, the parents come to a different agreement, or a parent can show a significant change in circumstance.

A final order will replace any temporary custody orders that were in place, but often temporary orders become the final orders if the orders still represent the best interest of the children.

Child custody can almost always be modified, but permanent orders require a showing that there has been some significant changes in the life of the child or parent. One way to modify custody orders is to agree with the other parent. It is important that any agreed upon changes be memorialized in a formal written document signed by a Judge.

If one parent believes that something has changed that has impacted the best interest of the child and the parties cannot reach an agreement, a Request for Order can be filed to modify the permanent or temporary custody orders.

To ask the court to change a permanent custody order, a parent must show a substantial change of circumstances and establish that the requested modification is in the child’s best interest. Significant changes that warrant a modification include the age of the child, location of the parties, and major changes to work or school schedules.

As a child gets older, courts can also look at the child’s wishes if the child is “of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation…” (Cal. Fam Code § 3042.) Most California courts state that children who are 12 are of “sufficient age and capacity”.

A very important consideration of any child custody case is the impact that prolonged custody disputes have on a child. Modern research in this area shows that exposure to conflict between parents can have detrimental effects on the brain of a child. And because Judges do not want parents coming back to court over and over to change custody, it can be challenging to obtain a modification. It is crucial to have an attorney best suited to the needs of your family from the inception of your matter so that modifications are not necessary.

Unlike other areas of the law the Family Code provides that one party can pay for the other’s attorney’s fees so that there is equality in the legal process.

This legal right is not automatic. You must be prepared to present the Court with the evidence necessary to obtain or defeat an attorney’s fee request. The family law attorneys at Cottle Keen Lopiccolo & Heyde can help you understand whether you have a right to attorney’s fees or if you have exposure to paying for your spouse’s attorney. Call to request a consultation today.