The hardest part of divorce for many people is the thought of losing time with their children. Many people stay in bad relationships to avoid splitting custody. Not all parents “consciously uncouple,” while peacefully focusing on the kids. If you are divorcing or going through a legal separation and have children under 18, child-custody disputes can be devastating. The feelings of anger, sadness, and sheer panic are normal. If your co-parent is at risk to your child, contact an experienced Marin County Family Law Attorney today.
Also, not all parents should have joint, unsupervised child custody. Many people suffer from active alcoholism, drug addiction, or are otherwise unable to properly care for a child. The state of California’s policy is to protect children, even from the child’s own parents, when necessary.
Family Code Section 3011
When determining child custody, the Court considers what is “in the child’s best interest.” What is a child’s best interest? This phrase appears in several Family Code statues and in case law. To answer this question, we will briefly examine three crucial Family Code Sections: 3011, 3020 and 3040.
California family courts examine the factors in Family Code §3011 to determine a custody schedule in the child’s best interest. The Court considers any history of abuse directed at child, the other parent, or others such as a current spouse. Courts will also look at drug or alcohol abuse in determining the child’s “best interest.”
As §3011 indicates, it is important that there is “independent collaboration” of the allegations against your ex. Consult with a family law attorney in Marin to evaluate your evidence.
Family Code Section 3011
In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:
(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking custody against any of the following:
(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
As a prerequisite to considering allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this subdivision, “abuse against a child” means “child abuse” as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means “abuse” as defined in Section 6203 of this code.
(c) The nature and amount of contact with both parents, except as provided in Section 3046.
(d)
The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this subdivision, “controlled substances” has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.
(e) (1) Where allegations about a parent pursuant to subdivision (b) or (d) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (b) of Section 6323.
(2) The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.
Thus, Family Code §3011 emphasizes that the child’s “health, safety and welfare” is of paramount importance. It also creates a rebuttable presumption against awarding child custody to drug, alcohol, and domestic violence abusers. However, if you are sober and have a record of sobriety, a distant past of addiction issues is less impactful. There are thousands of parents in recovery that have done a full 360. Just because you suffered from addiction at some point does not necessarily mean you will lose custody.
Many parents are concerned their ex will make false accusations against them to obtain a child custody advantage. Unfortunately, such false accusations are far from uncommon. Such accusations are harmful. If made, they can make a divorce acrimonious quickly. And if the claims are false, the party making them may be sued for perjury or libel.
Can a Marin Family Law Attorney Help Me if my Ex Fabricated Abuse Allegations to Gain a Child Custody Advantage?
The answer to this question is “yes.” The safeguards of Family Code §3011 exist to protect children. Unfortunately, it is all too common for parents to fabricate abuse allegations to gain a child custody advantage. If this has happened to you, you are not alone. It can be devastating to read false accusations about parenting, especially in a public court document. Contact a Marin County Family Law Attorney if you are in this position and need legal advice. And no matter what, do not feel alone. Mudslinging can be common in divorce. However, it does not have to be. Often, the parent that takes the higher road is seen as more reasonable.
As stated above, Family Code §3011 provides certain safeguards to protect against false allegations of abuse or drug/alcohol addiction. The Court may require independent corroboration. For domestic abuse allegations, the Court suggests that “substantial independent corroboration. This can include written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities.”
Family Code Section 3020
Family Code Section 3020 reiterates some of the points in Family Code Section 3011. For instance, it mentions the “best interest of the child” standard. It also emphasizes that the “health, safety and welfare of the children” is the primary concern. Also, Family Code Section 3020 mentions to danger of domestic violence and child abuse. When the Family Code repeats itself, take notice. These phrases are important.
Family Code Section 3020
(a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.
(b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011.
(c) Where the policies set forth in subdivisions (a) and (b) of this section are in conflict, any court’s order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.
Family Code §3020 states that California’s public policy is for children to have “frequent and continuing contact with both parents.”
This provision is often cited by family law attorneys in various briefings.
What this essentially means is that two good, reasonably health parents should be spending relatively equal time with the children. However, the Court considers many factors in determining a parenting plan and has “broad” discretion, per Family Code Section 3040.
California Family Code 3040 Grants the Court Broad Discretion to Determine Parenting PlansFamily Code Section 3040
(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020:
(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order.
(2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.
(3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
(b)
The immigration status of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody under subdivision (a).
(c) The court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interest of the child under subdivision (a).
(d) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child, consistent with this section.
(e) In cases where a child has more than two parents, the court shall allocate custody and visitation among the parents based on the best interest of the child, including, but not limited to, addressing the child’s need for continuity and stability by preserving established patterns of care and emotional bonds. The court may order that not all parents share legal or physical custody of the child if the court finds that it would not be in the best interest of the child as provided in Sections 3011 and 3020.
Will the Court Consider My Sexual Orientation When Determining Custody Time?
The answer to this question is “no.” Public policy forbids it. This is not to say discrimination is eradicated. It’s not. Be on the look out. If you suspect discrimination, tell your lawyer.
None of these factors are relevant to whether or not a person is a good parent. A parent should not be afraid that any of these factors will influence a court’s custody decision. Many fathers will make the assumption that they will not be awarded joint custody because they are male. Without devaluing those feelings, it is important to know that the Family Code prohibits such discrimination as against pubic policy. There are many family law attorneys in Marin County and the Bay Area. Make sure you choose a family lawyer that can identify and address discrimination if it appears in your divorce proceedings.
Should I Contact a Marin County Divorce Attorney?
Contact Warren Major LLP for a free consultation.
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