Orange County Divorce Attorney, Peter H. Wernicke
California Orange County Divorce Lawyer, Attorney at Law  
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Child Custody

Peter H. Wernicke, Orange County Child Custody Attorney
Deciding which parent will have custody of your children can be the most difficult part of your case.

If children are involved, one of the most difficult issues of your divorce may be deciding who will have custody of them.  It is important to develop a plan with your spouse that will lay out the details of your children's custody.  Having the courts or a judge who is essentially a stranger to your family make this decision on your behalf can lead to dissatisfying results. 

The more details you can work out with your spouse, the smoother your divorce will proceed.  If possible, develop a plan that outlines who will be responsible for your children on a daily basis and how you will deal with scheduling, special occasions, and holidays.  Be sure to include details about your children's medical care, schooling, and religious upbringing.  If your children are old enough (usually around 12 years of age or older), it may be prudent to consult them in regards to what living arrangement would be preferable; however, it is not a good idea to force your children to make a decision, or to impose guilt trips on them.  Courtroom custody battles can be arduous for the following reasons:

It can be hard on your children, and the outcome directly affects them.
It can be costly, sometimes requiring the testimony of outside sources like social workers and appointed experts such as psychologists.
Outside sources may be responsible for making the important decisions involving your children's living arrangement.
The Court's ruling may not meet your expectations, as there are no guarantees.

Overview of your Options

Below is the definition of a few key terms that will help you understand what is involved:

Legal Custody: Having legal custody of your children means that you have the right and obligation to make decisions about your children's life and upbringing. Usually, both spouses share legal custody after a divorce. Any parent with legal custody has the right to make decisions about their children's health, education, religion, etc.
Physical Custody: Having physical custody of your children means that your children will physically live with you. Again, it is possible to have shared (or "joint") physical custody, in which case your children will take turns living at each of the spouse's homes.
Sole/Primary Custody: Having sole custody of your children means that your children will primarily live with you, and your spouse (the "non-custodial" parent) will usually have a fair visitation schedule. Although you will be responsible for your children's caring on a daily basis, the non-custodial parent will still usually have at minimum legal visitation rights.
Joint/Shared Custody: Having joint custody of your children means that you and your spouse will share legal and/or physical custody of your children. The Courts prefer joint custody arrangements if neither parent is abusive nor on drugs nor alcohol. In general, the Courts prefer that each parent has maximum access to their children, taking into consideration the distance the parties live from each other and the communication the parties have with each other.
Split Custody: Split custody is a rarely used option in which one parent may take physical custody of some of the children, while the other spouse will take physical custody of the other children. This option is sometimes used to cater to children with special needs (for example, health concerns).

What the Courts will Base their Decision On

Peter H. Wernicke, Orange County Child Custody Attorney
The Courts' primary concern is your children's well being.

The Courts' primary concern is your children's well being.  If your children are mature enough, the Courts may consider their living preferences.  Each circumstance is different, but the Courts prefer that both parents maintain an active involvement in their children's lives.  The Courts generally grant joint legal custody to the parents in order to care for their schooling, medical, and other legal needs.  Sole physical custody is generally granted to the parent who is most actively involved in caring for the children, while reasonable or generous visitation rights are granted to the other spouse.  The past here often foretells the future: i.e., the parent who was actively involved with the children during the marriage most likely will stay involved in the future as a single parent.

A sample visitation schedule may be one in which the non-custodial parent spends time with the children every other weekend, one day during each week, and on certain special occasions.  If both parents live relatively close to each other (i.e., in the same school district) and there exists a high degree of cooperation between the spouses, the Courts may award joint physical custody in which a living schedule will be arranged for the children.

The Courts generally disapprove of any activities that may have a negative effect on the children.  For example, one spouse appears to unreasonably restrict the other spouse from visiting with the children.  Some parents feel that the "children are mine," which is incorrect.  The Courts will restrict visitation for acts of misconduct like abuse, drugs, neglect, criminal activities, etc. 

Caution:  If the relationship between you and your spouse has reached a point where you feel moving out is an immediate priority, be aware that leaving your children behind may affect your chances of obtaining physical custody.  It is highly advisable that you contact an attorney before leaving your children with the other spouse, or removing the children from the house with you.  A temporary court order is usually required to remove your children from their home.  If you feel your children are in danger of physical harm, contact the appropriate authorities and an attorney.  You can set up an initial  consultation by contacting Mr. Wernicke at (714) 558-8841.

Relocating your Children

The Courts generally require 30 days' prior written notice if a parent plans to change your children's location.  The Courts generally will not grant custody to a parent who is moving the children simply to cause emotional hurt to the non-custodial spouse.   A spouse who relocates for a different job, or intends to re-marry a person in another area, may be granted the right to move with the children after requesting Court approval.  Again, each circumstance is different, and there are actions Mr. Wernicke can take to help.

The Effects of Child Custody on your Taxes

If your children do not live with you more than 50% of the time, you cannot file for a "Head of Household" credit, unless the Court orders that you may.


Table of Contents
Section 0) Overview: Handling a Divorce Section 5) Spousal Support  
Section 1) What You Should Know First Section 6) Child Custody  
Section 2) Starting Your Divorce Section 7) Child Support  
Section 3) Domestic Violence Section 8) Updating Your Will  
Section 4) Division of Property Section 9) Make An Appointment  

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Still have questions? Call: (714) 558-8841