Divorce, which is also known as dissolution of a marriage, is becoming a common occurrence in California today. Going through a divorce is a life-changing event, and prior knowledge of what to expect can make things easier for you. Despite divorce not being a criminal offense, it will be wise to seek legal guidance and representation in the divorce hearings to ensure better results on your rights as a parent.
Since the aftermath of divorce is usually characterized by changes in your parental rights, including the rights to child custody and the right to determine your child support. San Diego Divorce Attorney covers the issues below to give you a better understanding of how divorce can affect your parental rights.
What are Parental Rights?
In relation to family law, parental rights refer to a parent’s right to make important decisions on behalf of their child. Parental rights are automatic for biological parents, foster parents, and adoptive parents. State laws of California may vary regarding child rights, but the court analyses them with the best interests of the children in mind.
Some of the parental rights that can be affected by divorce are:
- The right to pass your property to the child in form of inheritance,
- Powers to make decisions that affect the medical and emotional wellbeing of the child. This may include the kind of treatment they undergo in case of a medical problem and also a decision to seek counseling if they have emotional issues,
- Rights to contact and visit the child. Whether parents are married or not, each one of them has a right to communicate and spend time with their children, which may not be the case after a divorce,
- Rights to enter into a contract on behalf of an underage child, and
- Rights to assume both legal and physical custody of the child.
In some cases, biological and non-biological parents have rights regarding the child after a divorce. This is often the case when you have legally adopted the child. After a divorce, you may decide to transfer your parental rights to the other parent, but it does not mean you entirely cease to be in the child’s life since you can still visit and spend time with the child.
How Will Parental Responsibility for My Children Be Determined After My Divorce?
If you and your partner decide to get divorced, you might both retain some element of rights on the children who were born during your marriage or a registered partnership. If you don’t wish to share your child’s parental rights with your partner, you can decide to petition the court, and the judge will make a decision to whom the full rights are granted.
When more than one child is involved, parental responsibility is assigned independently for each child. Children who are 12 years and above are entitled to an opinion to whom their parental rights is assigned. If you get awarded the full responsibility, then it will be your duty to support the child until they attain the age of 21 years.
Some of the elements put into consideration when assigning parental rights include:
The child’s opinion
Children aged 12 years or older, whose parents decide to get a divorce, can get a notification from the court so they can appear for the hearing. However, it is their decision to show up or not. Their opinion is taken into consideration before a decision is reached.
Stability of living conditions
The balance of living situation may have a significant effect on a child’s emotional and social development. The court is likely to award you the parental rights after a divorce if their investigations can prove that your living situation is stable enough for the child’s general wellbeing.
The child’s age, sex, and background
The court is most likely to award custody of younger children to their mother. Female children are also expected to be left in their original homes or with parents who are most involved in their lives.
Ability to provide for the child
Your ability to provide for the children will have a significant effect on your parental rights after divorce. You may have greater financial capability but a low inclination in providing for the needs of the child. In this case, you are not likely to get full parental rights.
The health of the parents and emotional attachment to the children
Caring for a child can be challenging for a parent with a compromised physical or emotional health. The status of your health will determine if, after a divorce, you lose your parental rights or not. Each parent would want to know if they are the one with the most profound emotional connection with the children. This is shown by a tendency to acknowledge the child’s needs and your knowledge of their interests, likes, and preferences.
You can use your partner’s emotional instability and poor physical health to convince the court that you are the most suitable parent to have full custody and parental responsibilities of the child.
Safety of the child
Before deciding to award custody, the court puts into consideration the welfare of the child in the long run. If you have a criminal history or a past conviction for violence or abuse, then you are not likely to get custody of your child.
When Can My Parental Rights Get Terminated After a Divorce?
Child custody after a divorce is a very complex subject. Although it is not familiar, you can ask the court to terminate parental rights of your partner on the grounds of abandonment. The court will investigate if your claims are correct, that is if the other parent has been absent from the child’s life for more than one year.
Additionally, you must show that during their period of disappearance, they did not provide financial assistance to the child’s welfare. If the court deems it necessary, it may terminate the parental rights of the absentee parent, and hence, they won’t have any say in any decision regarding the child’s wellbeing.
Different Types of Child Custody Arrangements in Case of a Divorce
When you and your partner decide to get a divorce from a marriage with children, the court will allocate parental rights including child care. This is done to ensure the best interests of the child will be protected. After proper evaluation of different contributing factors, the court can order different custody arrangements including:
Physical custody
The parent who has physical custody of the child has the right to live with him or her. In the case where the judge orders joint physical custody, the child is required to spend a significant amount of time with each parent. This type of arrangement is possible if you and your partner live close to each other.
Legal Custody
Legal custody means having an obligation to make essential decisions on the child’s upbringing. If the judge gives your partner the legal custody, they will be making all decisions regarding the child’s education, religious upbringing, and medical care.
After a divorce gets finalized, the judge may grant joint legal custody, and if this happens, you have to consult between you and the other parent before making any decision concerning the child. When the circumstances between you and your partner make it impossible to share joint custody, you can ask for a modification and fight for sole legal custody.
Sole Custody
One parent can be granted sole legal or physical custody of the child if they prove that the other parent is not fit to make the decisions concerning the child. This may be due to alcohol or drug abuse as well as child assault. In such a case, the non-custodial parent can still have visitation rights under supervision.
However, it would be wise to avoid seeking sole custody unless your partner poses a direct physical threat to your child. Since having both parents is good for the child.
Joint custody
The judge awards Joint custody when the parents don’t live together. You will have to share responsibility for both physical and legal custody of the child if this is the case after your divorce. When you are in this kind of custody arrangement, you will work on a schedule according to each of your work commitments.
If you have a family home, the children can be asked to stay there, and you can take turn moving in with them.
Joint custody helps in ensuring children continued contact with both parents and reduces the burden on one of the parents. However, the movement of children from one home to another and parental non-cooperation can make it very hectic to share custody.
What are the Implications of Divorce on Parental Consent and Participation?
Although divorce affects everyone who is involved, the situation can be quite devastating for children suffering from disabilities. A study done by the American Psychological Association shows that the rate of divorce is higher in parents of children with special needs.
Divorce often brings inevitable changes in a home and may change the way in which parents go about their child’s special education needs. If you happen to have a child with special needs after the divorce, you are entitled to your opinion and views on matters concerning the child. You and your partner have rights to be part of every decision made.
If you have joint physical or legal custody, you have to seek the consent of the other parent before allowing the child to get assessed and receive special education. Unless otherwise ordered by the court, parental rights made by IDEA are followed. However, in the case of sole legal custody, the parent with legal custody will be allowed to make decisions regarding the education of a child with disabilities.
What Rights Do Divorced Parents Have Under The IDEA?
According to the Family Educational Rights and Privacy Act, both parents regardless of custody arrangements have the right to review educational records unless the school is issued with a court order which states otherwise. Some of the privileges you will enjoy under IDEA after your divorce include:
- The right to exercise your due rights for the child depending on orders by the court,
- You have the right to agree or disagree with the other parent’s plans of getting your child into specialized schools,
- You are both entitled to receive and review progress reports of your child,
- You have the right to be part of the development team for your child’s IEP,
What Happens When Divorcing Parents Disagree on Matters Concerning the Child’s Education?
Two main factors govern educational decision making, and they include the nature of custody order or marital agreement on education decisions. Another factor is whether or not the legal custody of the child is joint.
The court does not allow one parent to eclipse their partner's parental rights; hence, if you happen to ignore your partner's opinion in joint legal custody, they can take you to court.
It is crucial to use the approach that is best for your children. You can decide to use other alternatives like mediation instead of taking things to court. By doing this, you will be able to maintain a friendly and healthy relationship with your ex-spouse and avoid the adverse effects of divorce on your children.
Parenting Plan for Divorced Partners
When you and your partner decide to get a divorce, you will be required to make a parenting plan for all your children under the age of 18 years. A parenting plan contains all the arrangements you prepare for the care and upbringing of the children.
For married couples, there is a registered partnership, and parental responsibility is shared; but if you are divorced, a parenting plan is necessary. The program contains
- How the upbringing and care of the child will be shared between you,
- The mode of communication you will use to pass information that concerns the child, and
- How financial matters regarding child maintenance are handled in case the court has not made it clear.
The parenting plan is a document that needs to be signed and followed by both parents for smooth running of co-parenting. If one of the parents has sole responsibility, the parenting plan will allow the other parent to make contact and spend time with the children.
There are different ways in which you can initiate contact with your child if you are not sharing physical custody. These ways are discussed below.
- Supervised contact
Supervised contact is where you spend a given amount of time with the child under the watch of the custodial parent. This means you cannot take the child out of the country or take them in the absence of the other parent. Furthermore, you are not allowed to spend more than the allowed time with the child if you are the non-custodial parent; otherwise, the custodial parent may file a lawsuit for your violation of court orders.
- Indirect contact through letters, phone calls, and cards
When you are divorced, and you live far away from your ex-spouse, physical contact may not be possible. If you are the non-custodial parent, you will have to use other means to keep in constant communication with your children. The connection can be by writing letters, sending them cards, and making regular phone calls.
- Overnight stays
The primary goal of overnight visitation is to help maintain the bond between the non-custodial parent and the children. These visits help in the emotional growth of the children. Custodial overnight visitation is, however, optional and the custodial parent may decide not to allow it for some apparent reasons such as:
Lack of Stability – No matter how you enjoy being in a new environment, living between two households could be quite hectic for the children. Divorced parents may forget to take back the children to their stable home, hence, affecting their life schedules.
Step-parent resentment – In a majority of divorce cases, custody is awarded to the mother. If the father decides to get remarried, the child may take time to adjust to the environment since different households have rules. Notably, dealing with their stepmother may be difficult for the children – most stepmothers may be hostile to the children and make it uncomfortable. If you happen to be the non-custodial parent, in this case, you are likely to lose your right to spend nights with your children.
The negative Impact of excessive gifting to children – Non-custodial parents may take advantage of the overnight stays to shower the children with gifts to win their favor. This may cause conflicts between the parents and shift the focus from providing the best for the children to overindulging them.
Finding a Divorce Attorney Near Me
When you are undergoing a divorce or separation, a divorce attorney will help you to understand this process. The process can be stressful if children are involved because you and your partner may fail to reach an agreement on each parent’s rights on the children. Our San Diego Divorce Lawyer understands that you have the best interest of having significant parental rights so that you can maintain your child’s well being. Thus, we invite you to call 858-529-5150 so that we can help you in settling this matter.
