Trevino Law, Inc.

For a family law lawyer call:  949.716.2102

A Family Law Firm Located in South Orange County

Contact a Family Law Lawyer
If you have a crises in your life, chances are, you need a divorce attorney . Whether it is child support , child custody , property division , or spousal support , Trevino Law can help you through. Trevino Law is dedicated to helping individuals through the legal process. If you are facing a family law issue, it is important to contact an attorney even before the petition is filed. 
  CHILD CUSTODY

Child Custody in Orange County is based upon the best interests of the minor child.

California Family Code section 3011 requires the divorce judge to analyze the best interests of the minor children. Those factors include:
  • the children's health, safety, and welfare;
  • history of domestic violence:
  • frequent contact with both parents; and
  • the habitual or continued use of controlled substances by either parent.
Many believe that the best interest approach is based upon which parent is the better person. However, there is a presumption that it is in the best interest of the minor children to have both parents involved in the minor children's lives. 

Best interest includes the health, safety, and welfare of the minor children. The court determines whether the children will be cared for in a safe environment, and remain healthy in both parents' homes.  If the needs of the children--such as regular health care, completed home work, and school attendance--will be met at both parents' home, the court is more likely to give both parents an equal timeshare. However, if one of the parents cannot meet those needs, then the children are  more suitable in the other parent's home, and the court will order visitation accordingly. 


FREQUENTLY ASKED CHILD CUSTODY QUESTIONS IN A
CALIFORNIA DIVORCE

What decisions can I make if I have joint legal custody?

What is the difference between legal and physical custody?

Can I get sole physical custody?

Legal custody allows the parents to make legal decisions for the minor child. Those decisions involved religious instruction, schooling, medical care, therapy, etc. Physical custody involves the parenting time with the minor child.
The courts rarely grant sole physical custody. However, if one parent is unable to care for the children, the other parent may get sole physical custody. In most situations, the courts will order joint physical custody especially if both parents have signficiant parenting time with the child. Joint physical custody does not mean that the parents have equal time with the children, it just means that both have significant time with the child.
California Family Code §3003 states that parents who have been awarded joint legal custody have the "right and the responsibility to make the decisions relating to the health, education, and welfare" of the minor child. The parties must obtain joint consent for any orders that require both parents to consent.

California Family Code §3083 requires the court to specify which decisions the parents must make jointly and the consequence for the failure to make those decisions jointly.  If the court does not do so, then either party may act alone.

How do I change visitation?

If you have a final order for visitation and the other parent will not agree to a request to change visitation, you must file a motion to modify visitation in Orange County.  In order to change custody, you must prove to a judge that there is a change in circumstances to jusify a change in custody.

My child does not want to visit with my ex, how can I end visitation?

There are two times where a parent can stop visitation with the other parent. The first is when the parent can prove to a judge that the other parent is an unfit parent.  The second is when the minor child is mature enough to make a decision about visitation. In both situations, an order should be issued before visitation ends.

I want to move away, how do I do that?

What is physical custody?

Before a parent moves away, it is important to give the other parent advance notice in writing. The notice should give the parent who is not moving enough time to file a motion to request that custody or visitation be modified.

If there are custody orders in place, the moving party must take care to avoid violating any custody orders when moving unless the party obtains a new custody order.
Physical custody is the physical time that each parent spends with the minor child. If an Orange County Court orders joint physical custody, it does not mean that the parties each have equal custody, it merely means that both parties have signficiant visitation. If one parent has little or no visitation with the minor child, then the other parent will have sole physical custody. If a parent has sole physical custody, he or she may move the child away from the home state. However, even in those situations, the other parent must receive adequate notice in order to challenge the move-away in court.
More child custody questions for California Divorces.

How can I subpoena my spouse's medical records?

Doctor's records and therapist's records are protected by the doctor-patient privilege. If the parent holding the privilege does not waive the doctor-patient privilege or if the parent has not put his or her mental status “at issue,” the court will will abide by the wishes of the parent who holds the privilege. The privilege can only be waived by the party holding the privilege.  If it is not waived, then the other parent cannot get access to the records. 
  1. Child Can Determine Visitation Schedule
    A Child May Set a Visitation Schedule
  2. A Child's Say in Visitation
    A Child Can Have an Input on Visitation
  3. Managing Director
    Babies and Custody
  4. Managing Director
    Siblings
  5. Managing Director
    Supervised Visitation
  6. Managing Director
    Custody Evaluations
  7. Managing Director
    The Law is Gender Neutral in its Custody Determinations.
  8. Managing Director
    Fathers May Receive Fifty Percent Custody
Child Custody

Interstate Custody Disputes

More on the UCCJEA

The UCCJEA is important, because it determines whether or not California has the ability to make custody orders if one parent has taken the children out of the state of California.  If California does not have jurisdiction over the custody issues in a divorce case, the custody will be litigated in the state that has jurisdiction of the issues. If another state is found to have jurisidction, then the parent who lives in California will have to travel to the other state to litigate custody. If California has custody, then the case will be heard in California.

The Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA)

Even if a parent of a minor child lives in California, California will not automatically have the ability, or jurisdiction, to make custody orders.

California has adopted the UCCJEA. The statutes are located in California Family Code section 3400 et. seq. The purpose of the UCCJEA is to prevent forum shopping. Forum shopping occurs when one party moves from California to another state or from another state to California in order to obtain a more favorable custody order. 

The UCCJEA curtails forum shopping by limiting the ability of a court in a different state from having the ability to make custody orders if California has jurisdiction. In effect, it divests the court in the new state from making enforceable custody orders. 

The UCCJEA provides that California has jurisdiction over a custody dispute if California is the child's home state. The home state is defined as the state in which the minor child has lived for the six months immediately proceeding the custody filing.  California Family Code 3402

If there is no home state because the child no longer lives in California, the court will ask whether the child lived in California at any time during the six months before the  custody proceeding was started. California will have jurisdiction as long as one parent or a person acting as a parent continues to live in this state. California Family Code 3421(a)(1) .

California Family Code §3402 gives California jurisdiction over child custody matters in three circumstances: 

  • California is the minor child’s home state,
  • the child’s home state does not have jurisdiction, or
  • the home state declined jurisdiction in favor of California.

Once a determination has been made that California has jurisdiction, the issues of custody and support can be heard and an order can be entered.
If one party moves out of California, and California continues to have jurisdiction, modifications in custody will continue to be heard in California unless the court relinquishes jurisdiction over custody to a new state.

Moving Out of California with the Children.
Changing California Jurisdiction
Even though one party may be granted permission to move out of state with the minor children, it is possible that under the UCCJEA, California will continue to have the authority to make custody orders. 
Once California has established jurisdiction to enter an order for child custody, jurisdiction can only be transferred to a different state by filing a motion in the new state and California relinquishing jurisdiction.