Trevino Law, Inc. 

Telephone:
(949) 716-2102



  A Family Law Practice


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Frequently Asked Child Custody Questions in
Orange County  

California looks to the best interest of the children
when making a custody determination

 
  1. 1
    Legal Custody
    The parent with legal custody has the right to make legal decisions. Legal decisions affect many areas of a child's life including medical doctors, schooling, and religion.
  2. 2
    Physical Custody
    Physical custody is the ability of parents to spend time with the child. Joint physical custody means that the parents will both have significant time with the child.
  3. 3
    Custody Factors
    The court presumes that both parties are fit and will award the parents custody based upon the health, safety and welfare of the minor child.
  4. 4
    Visitation
    Visitation is liberally granted unless one parent is proved in court to be unfit. Unfitness will be found if the child is in danger or neglected.
  5. 5
    Move Away
    After a divorce, a custodial parent may need to move from Orange County. If this is the case, the moving parent should notify the other parent of the move in writing.
  6. 6
    Modification
    After a divorce is entered, custody can be changed if there has been a change in circumstances. The moving party can file a motion for a modification of custody.
  7. 7
    Frequent Contact
    If one parent cannot foster continuing contact between the minor child and the other parent, the other parent may be awarded custody in a custody dispute.
  8. 8
    Primary Caretaker
    The parent who was the primary caretaker of the minor child during the marriage is more likely to obtain more visitation in a divorce.


What is the Purpose of the UCCJEA?

What is the UCCJEA?

What is the purpose of the UCCJEA?

Is the UCCJEA important in my case?

The UCCJEA is the Uniform Child Custody Jurisdiction and Enforcement Act. The act begins at  California Family Code Section  3400 and applies to interstate custody disputes.   
The purpose of the UCCJEA is to prevent forum shopping--one parent moving to a different state with the hopes that the custody case will be more favorable in the new state.  
If you file a custody case in California, the UCCJEA is relevant.  In the order for custody, the judge must make a finding that the minor child's home state is the state of California. 

What happens if after a judgment in California is entered, my children and I move to a different state? 

If I live in California, but my spouse and kids do not live in California, can I file for custody in California?

In what circumstances does a California court have jurisdiction of custody? 

When one parent moves to a different state and has custody, California will continue to have jurisdiction over custody issues which means that any modifications in custody will be heard in California unless California relinquishes jurisdiction. 
Even if a parent of a minor child lives in the State of California, California does not automatically have the ability--also known as jurisdiction--to make an order regarding custody. If the minor child lives outside of the State of California, the California court may not determine the best interest of the minor child as to visitation, because California is not the home state of the child. California Family Code §3402 requires a child to live in the home state consecutively for six months before the state has jurisdiction to enter an order on a child custody matter.
California can exercise jurisdiction over child custody matters in three instances: 

  • 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.


What Does the Court Consider When it Analyzes the Best Interest of the Minor Child?

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.

Do the Courts Favor Women in Custody Battles?

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. 

What is Physical Custody in California?
What is Legal Custody in Orange County
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.  Joint legal custody may allow parents to jointly determine legal decisions for the minor child.

If a court orders joint legal custody, it does not mean that all decisions have to be unanimous.  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.
If an Orange County Court orders the parties to have joint physical custody, it does not mean that the parties each have equal custody, it merely means that both parties have substantial visitation.  Usually 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 make decisions such as the right to move the child away from the local area.  However, even in those situations, the other parent must receive adequate notice in order to challenge the move-away in court.

Medical Records and Custody



If my spouse is mentally unfit, can I subpoena his or her medical records?

One parent may attempt to access the other parent’s medical records to show that the other parent is unfit to raise the minor children. A request for records can include not only medical records, but also a request for therapy session records. The difficulty lies, however, in the fact that both the doctor's records and the therapist's records are protected by the doctor-patient privilege. If the parent holding the privilege does not waive the doctor-patient privilege or put his or her mental status “at issue,” the court will usually not allow the release of the medical records or the therapist's records. 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.