You have a California divorce and you are concerned about your kids. You are asking, “how do I get full custody in California of my child?” and you want answers. We are here to help.
First, we have to make sure we know what “full custody in California” really means so you are clear.
Full custody is the term that parents sometimes use when referring to the legal term of sole custody. Sole custody comes in two forms – Sole legal custody and sole physical custody. There is a significant difference between the two and in this article we will discuss how parents can and should obtain it.
If you are a real visual person and want to see a cool graphic we created regarding some of the more common ways you can get full custody in California of your children, visit this PDF page entitled Sole Custody in California of Children MindMap.
To contact us, please fill out the form at the end of this article or call us at any one of our three Orange County offices. To reach us at our central office in Santa Ana, call us at (408) 351-1204.
A parent requesting full custody in California must be prepared to submit persuasive evidence to the family court
The court needs a compelling reason consistent with the children’s best interest to order full custody to one parent. We have a written a comprehensive guide on California child custody laws which discuss California’s public policy of favoring frequent and regular contact with both parents and generally favoring joint custody.
A parent who seeks full custody in California needs to be aware of this because walking into the case blind and with the thought that persuasive evidence (more than just your word against that of the other parent) justifying a sole custody order won’t be necessary will likely cause that parent to lose the court case.
A parent opposing a full custody request must not take the request lightly
Similarly, a parent who is facing a full custody order against him or her must be aware that he or she cannot just walk in the court and assume everything will work out. Although a request for full custody is not something that a court should ever take lightly, a defending parent must be vigilant in his opposition and be prepared to set forth to the court why the requesting parent does not meet his or her burden of proof that is required by California law.
In addition, a parent opposing a request for full custody should consider whether he or she should make a counter request for full custody if the request for custody by the other parent is made in bad faith. This includes but is not limited to situations where the other parent has engaged in misconduct such as false allegations of abuse, parental alienation, improper influencing of the children or interference with joint custody rights and is using any of that as a basis for the modification.
What is the evidence the court will need to rule on a full custody request?
1. Will a finding of domestic violence support a request for full custody in California?
The short answer is yes unless the other parent can persuade the court that the presumption of Family Code 3044 should not be applied. Family Code 3044 in subsection (a) states:
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, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.
Section 3044 then goes on to state how you rebut the presumption.
Practically and pragmatically, that means that a judge should favor a sole legal and sole physical custody request when one parent has been found to have committed domestic violence.
That however is not a conclusive presumption but rather a rebuttable one which means that the parent facing such a request can produce evidence to avoid a sole legal and sole physical custody order.
2. What impact will drug or alcohol abuse have on a full custody request?
The court can take substance abuse into consideration when evaluating a request for full custody by one parent. This includes drug or alcohol use and abuse of prescription medication, the latter of which is becoming an epidemic in America.
Parents often make the mistake of thinking that a simple allegation or even proof that the other parent has used drugs or alcohol is, by itself, enough to support a sole legal and physical custody request. California law generally requires more than just the bare allegation that one parent uses drugs. For example, to get an order for an alcohol or drug test, a parent must show habitual, frequent or continual illegal use of alcohol or drugs.
That is because the focus is on the children’s best interest and unless alcohol or drug use has reached that point of compromising the children’s best interest, family law judges may hesitant to make a sole legal and sole physical custody order.
That is very different than making orders other than full custody. Certainly, parenting time may be limited and other orders can be made to protect the children, short of an order for sole legal and sole physical custody.
A parent concerned about substance abuse should be vigilant in retaining a good family law lawyer.
A parent faced with another parent who uses illegal drugs or abuses prescription medication or alcohol should be vigilant in his or her retention of an experienced family law attorney to evaluate the facts and determine what requests should be made to the court and whether or not sole legal and physical custody orders or something different is best. Since every factual situation is going to be unique, no article will evaluate your specific situation.
What about a parent who is facing allegations of substance abuse in a child custody case?
Similarly, a parent facing a full custody (or any) request against him or her must be prepared to submit evidence that he or she does not abuse alcohol or use illicit drugs.
If the parent used to have a drug or alcohol problem, evidence that he or she has participated in treatment as well as alcohol or narcotics anonymous and has taken other steps to curb or eliminate his or her addiction will generally go a long way with a family law judge in the divorce and custody case.
Sincerity and honesty is a big factor in addiction and one mistake parents make is to try to hide the alcohol and drug use thinking that it will not be found out. Doing so generally makes a bad problem worse when the addiction gets to a point where the evidence of it is clear and there is now also a history that the parent lied to the court about that addiction.
Anytime the parent gets caught lying to the court under oath about something serious, which an addiction and substance abuse is, that fact may not bode well for the parent in future hearings.
What about the issue of child abuse and full custody requests?
Child abuse also qualifies as a justifiable reason seek a full custody request in California. The nature and extent of the abuse, as well as its proximity to the filing, are all important factors.
Parents who wait and do nothing regarding abuse for many months or a year or more may face an uphill battle when trying to persuade the court that the past abuse is good cause for current full custody orders.
Time is of the essence with child abuse allegations
A family law judge has to be a realist.
It may be difficult to persuade a judge that something is an emergency or a child needs immediate protection if you have done little to nothing to protect the child from the very abuse about which you’re complaining.
In addition, delaying the reporting of the abuse and seeking a full custody request much later will put your own credibility at issue if the abuse is not documented (photos, etc.) or there is no evidence of its reporting (law enforcement, child protective services, medical providers) and it becomes a he said and she said scenario, especially when the child is too young to testify and corroborate the abuse.
On the other hand, if the abuse is recent or it has a lengthy history which is likely to be repeated, parents stand a very good chance of obtaining full custody of the children in order to protect the children from further abuse.
In such situations, family law courts, especially in Orange County, may appoint a child custody investigation (called a CCI) or private child custody evaluation of some type to determine the history of the abuse as well as obtain facts and recommendations from court-appointed expert witnesses or social services.
What about false allegations of abuse or domestic violence? Can that be used to request full custody?
This is a difficult topic because courts do take false allegations of abuse seriously, as they must pursuant to California law, but, in our opinion, do not take it seriously enough.
False allegations of abuse is one of the worst things that a parent or spouse can do to the other parent and children. The more serious the false allegation, the more likely that a parent will need to take immediate action.
When dealing with knowingly false allegations of sexual abuse, California law states in Family Code 3027.5(b):
The court may order supervised visitation or limit a parent’s custody or visitation if the court finds substantial evidence that the parent, with the intent to interfere with the other parent’s lawful contact with the child, made a report of child sexual abuse, during a child custody proceeding or at any other time, that he or she knew was false at the time it was made. Any limitation of custody or visitation, including an order for supervised visitation, pursuant to this subdivision, or any statute regarding the making of a false child abuse report, shall be imposed only after the court has determined that the limitation is necessary to protect the health, safety, and welfare of the child, and the court has considered the state’s policy of assuring that children have frequent and continuing contact with both parents as declared in subdivision (b) of Section 3020.
Those who are victimized by false allegations of abuse must take the case as seriously as those victimized by actual abuse itself. It is the only way to protect the children’s best interest and avoid further damage to their emotions and psychology.
What if a parent has abandoned the children and spent little to no time with them? Is that grounds for full custody in California?
Abandonment is a serious allegation and there does need to be evidence in support of it. However, if it can be shown, courts can make full custody orders against the parent who abandoned children.
We most often see this in one of two situations.
First, a situation where there has not been any custody order and one parent has been the sole caretaker of the children. The other parent has provided little to no financial support and little to no time has been invested with the children since separation.
In such a scenario, when it has gone on long enough, the court has the discretion to order full custody to the parent who has been the caretaker. That is because there has been no bonding between the abandoning parent and the children and it clearly would not be in the children’s best interest to completely turn the status quo upside down and destroy what they have become accustomed to simply because the abandoning parent now suddenly wants to get back into the children’s lives.
Does that mean the parent who abandoned the children is forever barred from re-entering the children’s lives? Of course not. However, in such situations, the court will want to see actual effort (and the result of that effort) by the abandoning parent and genuine and proactive work into restoring the relationship with the children and increasing the parental bond.
This is done by starting off with visitation that is not overnight and will allow the children to adjust slowly and steadily to the increased parenting time as he or she demonstrates to the court that he or she is now serious about spending time with the children.
The second scenario happens when there is actually a court order in place but the abandoning parent does not follow it. The result should be the same but, because there is a court order, it is not uncommon for the abandoning parent to use it as a means of harassment of the other parent and threaten the other parent with contempt proceedings or other court intervention if the parent who has been caring for the children does not capitulate to the abandoning parent’s whims, whenever he or she decides that he or she wants to see the children.
The parent who has cared for the kids full-time is placed into a difficult situation. On the one hand, no right-thinking parent wants to violate a court order. On the other hand, that parent knows that it is not in the children’s best interest to be shuttled back-and-forth unpredictability like this just because of the other parent’s lack of stability and abandonment.
The best course of action is to seek an immediate court order for a child custody and visitation modification. Otherwise, the full-time parent will continue to be under constant harassment, intimidation and threats. Once the court orders are modified, those things do not become an issue anymore because the abandoning parent has lost all of his or her leverage for his or her misconduct.