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.
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 §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 Plans
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.