Going through a divorce is one of the most challenging times in a person’s life. When a married couple decides to file for a divorce, their children are most affected. This is because of the legal battles involved in a divorce, especially when it is contested. In California, children’s law ensures that the needs and interests are put first in any situation.
Even though most parents want to be supportive and provide a peaceful environment for their children, this is not always the case in a divorce. When you are undergoing a divorce with children involved, you may find yourself battling child custody issues, child support, and visitations.
With the intensity and emotional distress associated with a divorce, it is crucial to seek legal guidance. At San Diego Divorce attorney, we offer you legal advice and representation to ensure divorce does not take a toll on your children.
Overview of Children’s law
Matters divorce can turn out to be very ugly since most people divorce when marriages become sour. Filing for a divorce while having children together with the spouse can be more complicated since the child’s interests must be considered when making decisions.
When children are involved, you need to proceed with the divorce cautiously to prevent more psychological harm to the children. Divorce reduces the time you spend with your children, as you may be too focused on battles of separation and property sharing and forget to look out for the children’s interests.
Divorce could alter your role as a parent, and your involvement in the child’s life could be limited. Therefore, ensuring your interests and rights over the children during a divorce is crucial. Children’s law of California ensures that the rights of the children are protected under all circumstances. Divorce is one of the situations that could impact a child’s life negatively.
Children’s law addresses child custody issues, one of the most contested issues among divorcing couples. Also, the dynamics of adoption and child support are handled by the children’s law.
Child Custody During a Divorce
When a couple undergoes a divorce, children are likely to suffer the most. After separation, it is most likely that the parents will start to live in separate households. Children’s law handles custody matters to ensure children from a divorced couple have a stable life, and their needs are met. Issues of custody can be discussed with your ex-spouse when you are in the divorce process. However, if you cannot develop a solution, a judge will decide in court.
There are two significant types of child custody that are of concern after a divorce:
Legal Custody
A parent who has a child’s legal custody has the right to make crucial decisions about the child’s education, healthcare, religion, and welfare. When you undergo a divorce, the family unit is often destroyed, and decision making could be difficult. By awarding legal custody, the court ensures that there is someone responsible for making the decisions on behalf of the minor child. Legal custody could either be joint or sole.
A sole legal custody order means that one parent has the right to make crucial decisions on behalf of the child. If you are awarded legal custody of your children after a divorce, you do not need to consult your ex-spouse when making decisions stipulated under legal guardianship. The court awards sole legal custody to one parent if the judge feels that the other cannot make the decisions.
On the other hand, joint legal custody allows both parents to decide what school the child will go to and their health care issues. Even when you are not together, joint legal custody requires you to discuss with the child’s other biological parent before making decisions. If you do not agree on specific issues on the child’s health or education for some reason, you can go to court and allow the judge to decide what’s best for the minor.
Physical Child Custody
Physical custody is an order on which parent is to reside with the child after a divorce. Even before a divorce is finalized, it is expected that one of the spouses will have moved out of the family home. Determining physical custody ensures that a child has a stable living schedule.
Physical custody could be sole where one of the parents permanently resides with the child. The children’s court often awards primary physical custody to ensure that the child is stable. This mainly occurs when parents live further away from each other, and moving up and down would be inconvenient. However, the noncustodial parent may be awarded visitation rights.
Joint physical custody is an arrangement where each parent spends a significant amount of time with each parent. The main aim of joint physical custody is to ensure a child has continued contact with both parents. When the court awards joint physical custody, your child resides with you and the other parent. However, due to work and school obligations, the time may not be divided equally.
Sometimes, the court could award both legal and physical custody to one parent giving them rights to live with the child and decide on their behalf permanently.
Factors Affecting Child Custody Decisions in California
When a judge is awarding custody, they often watch out for the child’s best interests. At the beginning of a child custody case, both parents have equal rights. However, the following factors may be used to determine how the custody is shared:
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Health and safety of the Child
California law considers particular aspects of a child’s safety and wellbeing before awarding physical or legal custody. If a parent has a history of child abuse or drug abuse, the court could be reluctant to award custody to them. The law also considers a parent who has been convicted of murder or sexual crimes as a threat to the child’s safety.
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Co-parenting Skills
When awarding child custody, the court considers the parent who is more likely to encourage a positive relationship for custody. If the judge thinks that you are reliable enough to ensure frequent contact between the child and the other parent, you will likely be awarded custody. If one parent has a history of making wrong sexual abuse allegations on the other parent, they may be denied custody and visitations.
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Child's Preference
California children’s law requires courts to consider a child’s wishes before making a custody decision. There is no particular age at which a child could give their opinion regarding custody. However, the view of older and mature children is more likely to take weight in the judge’s decision.
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Stability and Continuity
Divorce creates immense tension for the children. When making custody decisions, judges want to maintain a child’s stability as much as possible. A divorce distorts the family structure and a child’s way of life. Therefore, they award custody to a parent who can maintain the child’s pattern to protect their emotional wellbeing.
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Custody Options
Child custody can either be joint or sole for legal and physical custody. In most cases, the court prefers to award joint custody unless one parent is a threat to the child’s safety. Also, the judge could award joint legal custody alongside sole physical custody. The court will make its decision based on what is best for the child.
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A child’s Ties to School Home or Community
When awards custody to divorcing parents, they try to keep the child as stable as possible. When a child has school and community ties, the court will likely arrange that will not take them away from this environment. A parent who spends more time with the child and gives primary care could be favored when awarding physical custody.
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Parents Ability to Care for the Child
Division of property and assets occurs after a divorce. The court tries to ensure that a child does not lack the financial support they require to continue with the life they knew. A parent’s ability to care for the child and provide basic needs is critical in matters custody.
Child Support Issues after a Divorce in California
Child support is the amount of money a parent needs to pay for child-raising expenses. The judge often orders child support after a divorce, and child custody is determined. When you undergo a divorce and custody is shared, one of the parents, mostly the noncustodial parent, will contribute to the child’s upbringing each month.
Even though the matter may seem straightforward, child support cases are highly emotional. The state determines child support, and each parent is held legally responsible for their child’s financial support. Even when you are no longer in marriage, child support needs to be paid until the children are eighteen years old or are married.
Some of the expenses you are required to contribute to through child support include:
- Primary care such as food, shelter, and clothing
- Unpaid medical expenses
- Travel and visitation costs
- Back payments
In California, the following factors are used to make child support calculations:
- The number of children involved. The more children involved in the divorce, the more child support one must pay as a contribution to their upbringing.
- Earnings of each parent. The amount of money you earn each year is considered when determining the amount of money you need to pay as child support.
- Amount of time each parent spends with the child. When calculating child custody payments, the court considers the amount of time spent by each parent caring for the children. If the noncustodial parent spends less time with the child, they are likely to pay more child support.
A child support order is not final. Major changes in financial and personal circumstances could prompt a modification to the agreement. Some of these circumstances include:
- Job loss. If you lose your job while still on child support, you can petition the court to reduce the amount you need to pay monthly. Guidance from an attorney is crucial if you are in such a situation.
- Severe injury or disability. When a child support paying parent suffers severe injury or a disability, a petition may be made to modify the payments.
- Substantial increase in income. If the paying spouse has a large inheritance or substantial increase in income, a petition could be made to modify the terms.
Divorce and Child Adoption
Divorce is always hard on children present in a union. However, adopted children may be more affected since the family unit’s dissolution amplifies the difficult emotions they already deal with in their lives. Most children struggle with a sense of belonging, and divorce makes the situation more complicated.
Children’s law tries to ensure that adopted children’s rights are respected even when the adoptive parents undergo a divorce. Also, California law is always looking out for the welfare of children adopted by divorcees to ensure their needs are met, and they are not affected by the parents’ status.
Divorce during the process of adoption does not end the adoption. However, it could be an obstacle that needs to be handled with care. There are several types of adoption, and how a situation is affected by divorce depends on parental rights and the court’s decision. The common types of adoption available under children’s law in California include:
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Consensual Adoption
A consensual adoption occurs when the biological parents give up their rights over the child by giving them to the adoptive parents. Even when parents give their rights to the child to another person, they most likely want the best for their child. Most parents considering giving their children to adoptive parents prefer to deal with a stable family. If adoption was based on the notion that the child is going to a two-parent home, the biological parents might revoke their adoption consent.
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Foster care adoption
You can adopt a child from foster care when the state already terminates the biological parent’s rights, and they have no grounds to contest the adoption. When adoption occurs through the foster care system, the court approving adoption has the final decision on your eligibility for adoption. The court, in this case, considers a child’s best interests.
Most divorcing couples have unending battles. Most foster care children are from unstable families, and thus, the court may be reluctant to place them in a family undergoing a divorce. However, with guidance from a competent divorce attorney, you can prove to the court that your home is stable enough for the child.
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Step-parent’s Adoption
After a divorce, most individuals are sure to move on and enter other relationships, even marriage. Many step-parents hope to adopt the children of the new spouse legally. A step-parent adoption will only occur when the biological parent has no rights over the child or gives consent. When a divorce between a step-parent and a birth parent occurs, the court is likely to terminate the adoption process. This is because a step-parent is only allowed to adopt the child legally married to the biological parent.
In a domestic partner adoption, you are required to inform the court where the parental rights of the other biological parents are terminated. However, the other parent is notified, and the adoption may push through without their consent.
A divorce does not terminate a parent’s rights to their child unless otherwise stated by the court. Therefore, both biological parents should be involved before a step-parent adopts their child.
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International Adoption
When you want to adopt a child from a foreign country, their laws on adoption and child welfare will play a part in your ability to push through with the adoption. Many countries are reluctant to adopt children to single parents or individuals who have undergone divorce in the past.
A pending divorce could significantly derail your efforts of adopting a child. The environment surrounding the divorce could also determine the kind of environment in your home, which is a crucial factor during adoption. Therefore, it would be wise if you work with a competent divorce attorney to ensure the divorce and adoption process is as easy as they can be.
Find a San Diego Divorce Attorney Near Me
Divorce can be complicated, especially when minor children are involved. Emotions tend to run high, and you can easily be overwhelmed. Besides the hassle of separating from your spouse, you need to deal with issues concerning your children after a divorce. When divorce matters are not handled correctly, the children may suffer both mentally and lack of support. California children’s law works to protect children’s rights and look out for their welfare in divorce situations.
Competent legal guidance will go a long way for you through the divorce process. Attorneys from San Diego Divorce Attorney can help you take a step behind, analyze your situation, and make the best decisions for you and your children. If you are in San Diego, CA, you will need us by your side. Contact us today at 858-529-5150 and allow us to guide you through this trying time.
