Temecula Child Custody Lawyer
While a divorce is sometimes necessary, it often comes at the expense of the children impacted by the breakup of the family. When you cannot reach an agreement with your spouse, things are exponentially more difficult. In fact, most would argue that child custody is the most important and complex part of a legal separation, divorce, or dissolution. The same is true with paternity cases. Paternity cases exist when parents of a child are not married. Often times the couple is together, although not married, and when their relationship deteriorates the parties struggle to establish themselves as the “go to” parent. This breakup impacts children the same as when couples are legally married and then divorce.
Because of the importance of child custody matters, it is important to have a skilled family law attorney representing your interests and looking out for your children’s best interests. We prepare our client’s on a daily basis for court hearings involving custody and mediation, which is called CCRC in Riverside County.
Child Custody in Temecula
Within a divorce or separation case, or in paternity cases, there are dozens of issues that may exist. These include spousal support, division of assets, child support, and child custody. While some parents are able to mutually agree upon solutions, many require the intervention of the court.
When child custody is being decided, the courts generally look at two types of “custody”:
- Legal custody. Legal custody refers to a parent’s right to make important decisions for a child. This includes health, education, and welfare requirements. For example, a parent with legal custody can determine when a child needs to see the dentist and what school he or she should attend. In almost all cases, parents share joint legal custody. In situations where a parent has shown the lack of ability to make proper decisions in their child’s well-being, or where drugs and alcohol play a role, the court can and will appoint one parent to have “sole” legal custody.
- Physical custody. Physical custody is usually the most heated part of a court battle. This type of custody refers to the amount of time each parent will spend with his or her children on a regular basis, and the actual schedule that the parents will follow for the child to be in their respective care. For example, children may live full time with one parent but visit the other parent on weekends. Other times, the stipulations aren’t as strict, and children can freely move between parents as long as there are no disputes. There is also the possibility for joint physical custody when parents have a healthy relationship.
The court typically looks at legal and physical custody separately and may choose to grant both parents joint legal custody, but not necessarily joint physical custody. It’s all dependent on the unique circumstances of the situation.
Child Custody Recommendation Counseling (CCRC) in Riverside County
All parties going through a child custody or parenting time dispute in California have to participate in some kind of “mediation” before a judge or commissioner is allowed to make a ruling (aside from emergency, ex parte hearings). In Riverside County, that process is called Child Custody Recommendation Counseling (CCRC). Both parties meet with a “neutral” counselor at the courthouse to discuss what type of parenting plan should be set in place.
It is extremely important to be well-prepared for CCRC mediations, because the person conducting the session at court actually write a recommendation to your judge.
For more information about Child Custody Recommendation Counseling, click here.
Jurisdiction and Child Custody – A Complex Area of Law
Jurisdiction means the power the court has over an individual or “issue”. In custody proceedings, the very first step in an attorney’s analysis is to determine whether the court in Riverside, California has the power to make custody orders. Jurisdiction of the court can come in many ways. First, if the child at issue was born in California and currently lives in Riverside County, then this court will likely have the power to make custody orders. Likewise, if the child recently moved from another state and has lived in Temecula for the past six months, then the court here would likely have jurisdiction. It is usually the case, although not always, that when a child currently lives in Riverside County then the superior court (Family Law Division) has the power to make custody determinations for that child.
Jurisdiction for custody issues is governed by the California Family Code and Code of Civil Procedure. As part of the Family Code, the California legislature has adopted in substance the Uniform Child Custody Jurisdiction and Enforcement Act (or “UCCJEA”). The UCCJEA governs which states or governments will have the power to hear child custody matters when multiple states or countries may have the right to make orders. This is an extremely complex area of the law, and many judges in family law do not have a vast amount of experience with the UCCJEA unless they previously practiced family law for a long period of time. Therefore, it is imperative to have a skilled family law attorney working with you if the UCCJEA is at issue.
Unless custody is evenly split down the middle, one parent has visitation rights. Those rights fall to the parent who cares for the child less than half of the time. Unless visitation is determined to be detrimental to the child’s health, safety, or wellbeing, visitation rights will be granted in some form. Each family’s situation is different. As a result, studies have shown and court’s have started to adopt the premise that a custody and visitation order should be specifically fashioned for the family and the court should not simply rubberstamp “normal” visitation schedules.
Visitation can be unsupervised or supervised. Supervised visitations are relatively uncommon, and result when one parent has shown a propensity to harm the child in one way or another so that allowing them unmonitored access to the child could be dangerous for the child. Unsupervised visitation can occur on an infinite number of differing schedules and could even include daily contact.
Best Interests of the Child
Above all else, the court seeks to determine a custody and visitation plan that appeals to the best interests of the child. The court will consider factors like the child’s age, his or her relationship with each parent, the child’s schedule and how it aligns with each parent’s schedule, education and development, the physical distance between each parent’s home and school, and any other relevant factors. When children are old enough to speak for themselves, they are usually asked for their opinion and/or preference. In California, that age is currently 14. Any child that wishes to express their wishes who are 14 years or old are granted that opportunity by law, unless the court finds on the record that doing so would not be in the child’s best interests.
There are a series of important Family Code sections including Family Code 3020 and 3040 that describe what the court must consider in determining a child’s best interests. Section 3020 states in part:
- (a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.
- (b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011.
Family Code 3040 states the order of preference the court should give to custody, which is to both parents equally first. If not to both parents equally, then to the parent most likely able to facilitate the other parent’s relationship with the child.
Modification of Custody Orders and Judgments
Our law firm regularly handles modification of child custody and visitation orders, decrees and judgments, even if they were made in another state or county. If you have a current order that you wish to modify, contact our office today for a free consultation.
The determination of whether a custody order will be modified depends on whether there have been “changed circumstances” since the entry of the order. This means that something has changed for the parents or the child that warrants the change. If a judgment contains the word “Montenegro” that means it is a “final” judgment and the party wishing to change it must show “significantly” changed circumstances. Otherwise, to modify custody from a previous order all you will need is changed circumstances. Notably, the Birnbaum case stands for the proposition that the court does not need any evidence of a changed circumstance to modify a visitation order – it can do so without there being any changes whatsoever.
The Value of a Child Custody Lawyer
Your children are precious to you. As a parent, you have certain rights to see and care for your children. While it can be tempting to save money and represent yourself, it is not advised. The other parties involved will almost assuredly use legal representation – and you should do the same. An experienced attorney has dealt with hundreds of child custody cases in the past and can provide you with the knowledge necessary to achieve a favorable result.
Wilkinson & Finkbeiner, LLP
At Wilkinson & Finkbeiner, we have children of our own. We understand what it is like to want the best for your children, and we are committed to helping our clients fight for their custodial rights. As California State Bar Certified Family Law Specialists, David and Scott are two of the most experienced and talented attorneys in Temecula & Riverside County. Justine is an outstanding and experienced litigator and negotiator. We promise to listen to your needs, explain the process in language you understand, and aggressively fight for your rights. For a free confidential consultation, contact us today!