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For San Diego Residents: Some FAQs About Child Custody

Couples in San Diego and elsewhere embarking on a divorce are generally hazy about matters relating to child custody. Here are some frequently asked questions however there are many others. The law is different even in California on issues county by county. For example, while there is mandatory mediation in California, San Diego County is a recommending County and other Counties are non recommending. This means that for child custody and visitation issues in San Diego County, the parties must attend the mandatory mediation with Family Court Services. In San Diego, if the parents do not reach an agreement, then the Mediator prepares a written recommendation which is submitted to the Court and also given to each party. This is very important to know since the Judge’s follow the mediation recommendation the majority of the time.

If I Vacate the Home and Leave My Child in the Care of My Spouse Will It Impact My Chances of Attaining Custody?

Unfortunately, yes. However justified your reasons for leaving, parents who leave the family may have a diminished chance of obtaining child custody when the case goes to court. A Judge may view your departure as an implied action of your intent not to live with the children.. Furthermore, the Judge may also prefer not to unsettle the status quo and leave the child with the parent residing with at present. It is very important to understand that the law in San Diego is the “best interests” analysis under the Family Law Code. Stability is part of this best interest analysis. As such, if the child or children have been living with the other parent pending the court hearing, this may bring a negative consequence especially since a court hearing in San Diego County now may take 90 or more days from when the motion is filed. There are many court cutbacks and budget issues and the hearing dates may take even longer. The Court, for family law cases, will now not provide an interpreter and this is to be implemented in December of 2012.

Alternatively if you take the child with you when you leave your home, the Judge may see this as your attempt to interfere with the other parent’s rights. This is a difficult balancing test for many parents in San Diego since it is clear that tension and conflict is high during a divorce and it may be very difficult to live together post separation. It is very important to understand that the focus is on the best interests of the child or children and not the parents. This is a common misunderstanding.

Who Generally Receives Custody of the Child – The Mother or Father?

In San Diego, the law specifically states that gender is not a consideration in making a custody determination. The award of custody to the parent, which in the court’s opinion, will be decided on what is in the best interests for the child. This includes bonding, stability, frequent and continuing contact, minor siblings [half siblings are treated the same under San Diego law as full siblings], health, education, safety and welfare to name a few.

A father has every right to request equal parenting time as does the mother. Again, this is not a gender issue but is a parent issue. The decision might be influenced in favor of the parent who is able to spend more time with the child or can provide a more stable household.

Is Custody Always Given to Only One Parent?

No. In fact, if the court approves the idea, the court would prefer to award joint legal and joint physical custody per the Family Law Code in San Diego and California. This is generally of three types:

  • Joint physical custody where the child is able to spend considerable time with both parents over the year such as a 5-2-2-5 schedule or other comparable parenting time
  • Joint legal custody both parents have a say on decisions which affect the child such as medical care, education, and spiritual/religious matters
  • Joint legal and physical custody which is a combination of the earlier two however it is possible for a Court to make an order for either sole legal or sole physical custody.

The court will make the final call about which type of custody is in the best interests of the child but you have every right to argue for your preference in regards to joint custody.

Attorneys Who Can See You Through the Fog

The law firm of Doppelt and Forney, APLC offer legal and paralegal services in divorce cases and other related issues such as child custody, visitation rights, child and spousal support. The firm offers initial virtual consultation free of charge for up to 30 minutes during which time you can discuss various aspects of child custody and determine whether joint custody is a workable post-divorce solution for you. Specifics are discussed at the initial consultation to protect your rights and try and obtain your legal goals with proven strategies and techniques.

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