Pre-Judgment Child Custody Disputes
When the parties to a forthcoming divorce separate, the issue of child custody can become a thorny issue. Often it takes time before the court hearing the divorce matter addresses the issue of child custody in a formal way. Several steps have to occur, such as child custody mediation.Hire Best San Diego Family law Attorney for handling cases and providing quality services related to divorce or child custody.
In the meantime, who has the “rights” to make decisions about the children? Both parents retain “joint legal” and “joint physical custody” over their children. “Legal custody” means the power to make decisions regarding schooling, health, and religious upbringing (among other things) on behalf of the children.
“Physical custody” means the power to control where the children live and with whom they spend time. Although both parents retain these rights, it may nevertheless be that a parent who takes the children from the family home without notice or a plan risks looking poorly before the court, and worse, could be in violation of the Penal Code section proscribing maliciously depriving the lawful custodian of the right to custody or visitation.
The court’s guiding principle in determining child custody is “the best interests of the child.” A party to a divorce must understand that hasty alterations of a child’s routine is detrimental to the child’s emotional well-being, and can have lasting negative effects.
A parent who wants to remain in a parental role after the completion of the divorce must take care not to allow the animosity of the divorce case have a negative effect on the children. The court will likely rule against a parent who uses the tactic of withholding children or limiting access to them.
The above is true, except in the instances when the other parent poses a legitimate threat to the physical or emotional well-being of the children. That said, exercising “self-help” is still not advised. There are legal maneuvers which can achieve the goal of protection of children without risking violating the other parent’s rights or damaging one’s own interest in being the caretaker of the minor children. Your attorney should promptly act in a case involving a risk to the children.
The court is not in the business of rewarding or punishing parents for their conduct, but rather in determining what is in the best interests of the children. However, this does not mean that the court will ignore the behavior of the parents to the extent that it negatively affects the children.
Behavior which interferes with the fostering and encouragement of frequent, positive contact with the other parent falls into this category. If you need help navigating through a divorce with child custody issues, please contact The Law Office Of Michael C. MacNeil to schedule a free consultation.