FAQ - How Do Courts Decide Where Children Live

Many people living in the San Diego area share custody of a child. While parents typically have the right to determine where their child lives, in shared custody cases, the decision is often made by the Courts. As such, it is important for anyone involved in a co-parenting situation to understand how Courts decide where children live and other important issues that may impact their parental rights. If you want to learn more about how the California Courts make child custody determinations, it is in your best interest to speak to a San Diego child custody attorney promptly. Such decisions are made on a case-by-case basis and depend on the unique facts of the case and other factors.

In San Diego child custody disputes, the Courts have the option of granting parents physical and legal custody rights. Physical custody is the right to spend time with a child and relies on a schedule or parenting plan. Legal custody is the right to make important decisions regarding how the child is raised, like what medical care they will receive and where they will go to school.

In any San Diego custody determination, the Court’s sole focus is what is in the child’s best interest. In other words, the Courts do not consider whether an arrangement may be inconvenient for a parent or may not align with their goals when determining custody. Typically, the Courts will find that it will benefit the child’s well-being to grant parents shared legal and physical custody, meaning they both have the right to make choices about the child’s upbringing and spend time with the child. In such cases, they may order a parenting plan with a geographic limitation on where the parents can live to support the child’s relationship with each parent and facilitate custody exchanges. In many cases, the parent’s live in the same community and, if not, within driving distance for frequent and continuing contact exchanges.

In some instances, a Court will determine that one parent should be granted sole legal custody of a child. In San Diego Family Law Court, this is rare and most parent’s have joint legal custody. This Order may occur when the other parent is incarcerated or is deployed overseas or other circumstances which would not permit a parent to make decisions regarding health, education and welfare. These decisions, normally, do not grant the custodial parent the right to determine where the child lives without restrictions. That order would be in the physical custody orders. In San Diego County, many parents also have joint primary custody but some do not and there are primary physical custodians. This can be a very important factor for future modifications and also is dependent on whether pre judgment or post judgment.

Many co-parents living in San Diego have amicable relationships and are able to come to an agreement regarding shared custody. In such instances, they will usually develop a parenting plan and present it to the Court for approval. California parenting plans should include terms defining physical and legal custody rights. While no other provisions are necessary, it is prudent for parents that create parenting plans to make them as detailed as possible, both to protect their interests and to avoid disagreements going forward. For example, they may want to include conditions regarding who has the right to decide where a child will live or restricting either parent from moving out of a certain geographical area while the child is a minor. Regardless of what co-parents include in a parenting plan, the Courts always has the legal discretion to approve or not approve the written agreement which is often called a stipulation.

The California Family Code expressly provides that, under certain circumstances, children can express their preference regarding which parent they would like to live with. Minor children do not make the decision where they live in Family Law Court. Instead, if no agreements between the parents, then the Judge will make this decision. Specifically, children that possess sufficient capacity and are old enough to form a reasoned decision can express their preference, which the Courts will consider when making custody determinations, including where they will live with the Judge, as always, deciding what is in a child’s best interests. For example, a minor child may prefer one parent as they do not force them to go to school and do not monitor them for conduct which they are not allowed to do: drink; smoke; have sex and others. In this case, the preference clearly should not be followed. While the applicable law provides that children who are 14 years of age and older have the right to address the Courts regarding custody and visitation, it also allows for younger children to make their preference known if the Courts determine that it is appropriate.

Notably, however, merely because a child expresses a preference does not mean that the Courts will rule in accordance with the child’s wishes, as the Courts will continue to abide by the best interest standard regardless of the child’s desires with some limited examples above.

This legal analysis begins with whether the case is post judgment or pre judgment. For post judgment cases, the legal standard is that the custodial parent has the presumptive right to move absent findings that the move is designed to frustrate visitation however the Judges also can look to best interests. For pre judgment move away motions, the Judges will legally analyze per the best interests tests. Three California Family Codes [Sections 3011; 3020;3040] list what is definition of best interests and factors. The power to change residency is subject to the power of the Court to prevent a relocation that would harm the child’s welfare or rights. In other words, parents subject to a custody order who wish to relocate with their children must seek approval from the Courts before moving or agreement of the parents or have an order which allows the move with no agreement or court order. In San Diego Family Law Court, many parenting plan orders include that the minor children cannot be moved from San Diego Country without a written court order or written agreement of the parties. This means, in case of disagreement, that a move away motion will need to be filed.. In post judgment joint physical and shared custody cases, neither parent has the presumptive right to move away with the child; instead, the courts will evaluate whether the move is in the child’s best interest.

Child custody orders issued by California Courts are effective until the child turns 18 years of age. At that time, the child is no longer a minor nor subject to the jurisdiction of the Family Law Court. Child support orders, however, are different and are effective until the child reaches the age of 18 and graduates high school or 19 unless special needs. Exceptions may apply in some cases, such as when the child has a disability as above. Regardless, any party subject to a child custody order, including one defining a child’s primary residence, can seek a modification while the order is still in effect. In order to demonstrate that a modification is necessary, the moving party must show that there has been a significant change in circumstances if a post judgment order. For example, if a party wishes to move or believes their co-parent is no longer able to properly care for their child, they may request a modification.

One of the primary concerns for many parents embroiled in child custody disputes is where the Court will determine their child can live. If you have concerns about child custody, it is beneficial to speak with an attorney as soon as possible. The trusted San Diego child custody attorneys of Doppelt and Forney APLC can advise you of your rights and assist you in seeking an arrangement that benefits your child and protects your parental rights. You can contact us through our online form or call us at 800-769-4748 to set up a free and confidential conference.