How a Parent Might Lose Custody of Their Child in California
Child custody and visitation are some of the most sensitive issues in the divorce context. Divorce is the most traumatic event many children will ever experience and bitterly fought custody battles only add to the pain. California family law courts do their best to act in the best interests of children, but sometimes that means granting sole legal and/or physical custody to only one parent. Physical abuse or substance abuse issues are commonly understood to be the primary bases for loss of custody, but they are actually much broader. If you are concerned about losing custody of your children (or would like to seek sole legal and/or physical custody), you should speak to an attorney at a Stockton child custody law firm.
California family law courts are guided by the fundamental principle that the health, safety, and welfare of children should be the court’s primary concern when making custody orders. California Family Code 3020 declares that children have a right to be free from abuse and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child. It also declares that it is the policy of the state to ensure that children have frequent and continuing contact with both parents after divorce. However, when those two rights conflict, courts are directed to prioritize the child’s health, safety, and welfare. As such, proven allegations of child abuse are strong evidence that legal and/or physical custody should be granted only to the non-abusive parent.
It may seem counterintuitive, but biological parents are legally capable of abducting (or “kidnapping”) their own children. This is because, in situations where parents share legal and physical custody of a child, both parents have a right to custody of the child. Abducting the child deprives the other parent of his or her legal right to custody. If the court becomes aware of facts that indicate that there is a risk of abduction by one of the child’s parents, it may significantly restrict that parent’s access to the child. Parental abduction is also a crime under the California Penal Code, which states that abduction occurs when anyone who does not have a right to custody “maliciously takes, entices away, keeps, withholds, or conceals” any child with the intent to detain or conceal that child from a lawful custodian.
Parental alienation is a form of psychological child abuse wherein one parent isolates the child from the other parent and attempts to create discord, hostility, and estrangement between the child and the other parent. It is normally accomplished by continually making disparaging remarks about the other parent (or allowing others to do so in the child’s presence), blaming the other parent for the divorce, stating that the other parent doesn’t love the child, or using the child as a pawn in the divorce proceedings. It is the policy of the state to ensure that children have frequent and continuing contact with both parents after divorce, and parental alienation can be severely detrimental to that contact. As such, evidence that one parent has engaged in parental alienation can put their custody rights at risk.
False Allegations of Sexual Abuse
Child sexual abuse is a serious matter and a compelling basis for a court to deny custody to a parent credibly accused of it. In fact, parents are encouraged to report suspected sexual abuse to the court. However, such allegations must be made with a reasonable belief that the child was actually the victim of sexual abuse. If a parent makes an allegation of sexual abuse that he or she knows to be false in an attempt to interfere with the other parent’s contact with the child, the court may limit visitation or custody for that parent. If you have been falsely accused of sexual abuse in a child custody proceeding, please contact an attorney at a Stockton child custody law firm to preserve your rights.
Violations of Court Orders
Child custody orders and other court orders are not suggestions; they are orders to the parents that impose a legal obligation on them to follow the parenting plan approved by the court, and they are enforced strictly. While reasonable deviations from child custody orders — such as failing to present the child to the other parent for the weekend due to a severe snow storm — generally will not expose a parent to liability, willful violations of custody orders are more serious matters. Violating a court order can result in the violating parent being held in contempt of court, which can be used as evidence that a child custody agreement should be modified.
Drug use does not automatically disqualify a parent from obtaining legal and/or physical custody of a child. California family law courts generally do not find that reasonable use of marijuana will adversely impact the child’s health, safety, or welfare. However, substance abuse is a different matter. If a parent is suspected of “habitual, frequent, or continual illegal use of controlled substances” or alcohol, the court may order that parent to undergo testing. While a positive test in itself will not constitute grounds for an adverse custody decision, the court will consider it within the context of the best interests of the child and whether the substance abuse is likely to adversely affect the child’s health, safety, or welfare. For example, alcohol use alone will not constitute the basis for an adverse custody decision, but a demonstrated history of drunk driving can result in a limitation on a parent’s visitation or custody rights.
Learn More from an Attorney at a Stockton Child Custody Law Firm
Child custody can be a fraught issue, and parents seeking sole legal and/or physical custody often face an uphill battle. For more information about loss of child custody rights, please contact an attorney at the Stockton child custody law firm of McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.