What is the difference between physical and legal custody?

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In California, legal custody refers to the right to make important decisions about a child's welfare, including decisions about education, healthcare, and religion. Physical custody, on the other hand, refers to the right to have a child live with you and to make daily decisions about the child's care.

There are two types of legal custody in California: sole legal custody and joint legal custody. Sole legal custody means that one parent has the right to make important decisions about the child's welfare. Joint legal custody means that both parents have the right to make important decisions about the child's welfare and must consult with each other when making such decisions.

There are also two types of physical custody in California: sole physical custody and joint physical custody. Sole physical custody means that the child lives with one parent and the other parent has visitation rights. Joint physical custody means that the child lives with both parents on a more or less equal basis.

It's important to note that legal custody and physical custody are two separate issues, and a parent can have one type of custody and not the other. For example, a parent could have joint legal custody but sole physical custody, meaning that they have the right to make important decisions about the child's welfare but the child lives with them full-time.

My co-parent refuses to notify me about important events, what can I do?

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Experienced Bay Area attorneys will tell their family law clients that when one parent refuses to notify the other parent about  important school events, medical appointments, extracurricular activities that you have to ask the Court for a specific order addressing the problem.

Here are some examples of what you can request:

(1) Order that requires the time frame for information to be given.  For example, within 48 hours of scheduling a routine medical appointment, notice must be provided to the other parent.  

(2) Order that requires weekly exchange of information or a shared google calendar. 

(3) Order that both parents be included on all school and medical communications. 

In the alternative, we like solutions such as Our Family Wizard and 2houses, which are programs that keep track of your Child’s schedule and other important information. These programs are online apps that can be accessed from your phone or computer. 

If you have questions about co-parenting plans, please email me at amanda@gordonfamilylaw.com

Can parental rights be terminated without an adoption request?

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Experienced bay area attorneys will tell their clients that yes, parental rights under Family Code Section 7822 can be terminated outside of an adoption proceeding.

Family Code section 7800 states, “the purpose of this part is to  serve the welfare and best interests of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child’s life.”

In In re Marcel N. (1991) 235 Cal.App.3d 1007, the court held that one’s parental rights may be terminated even when there is no pending adoption.  The Court found that precluding a single mother who is capable of raising her child from terminating the parental rights of the child's natural father should not be of less importance than allowing a remarried mother – whose new husband wishes to adopt her child to terminate the parental rights of the biological father.

Similarly, in In In re Marriage of E. and Stephen P. (2013) 213 Cal.App.4th 983 the Court found that terminating the father's parental rights was in the child's best interest, regardless of whether there was somebody waiting to adopt the child. 

If you are considering terminating parental rights or you are faced with a termination petition, we strongly recommend that you reach out to an attorney to seek counsel.  You can contact me with questions at amanda@gordonfamilylaw.com

 

 

Grandparent Visitation

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A grandparent can ask the court for reasonable visitation with a grandchild. 

To give a grandparent reasonable visitation with a grandchild, the court must find: (1) a pre-existing relationship between grandparent and grandchild that has “engendered a bond.”  This means that there is such a bond between grandparent and grandchild that visitation is in best interest of the grandchild; and (2) Balance the best interest of the child in having visitation with a grandparent with the rights of the parents to make decisions about their child.

In general, grandparents cannot file for visitation rights while the grandchild’s parents are married. 

But there are exceptions, like: (a) The parents are living separately; (b) A parent’s whereabouts are unknown (and have been for at least a month); (c) One of the parents joins the grandparent’s petition for visitation; (d) The child does not live with either of his or her parents; or (e) The grandchild has been adopted by a stepparent.

Under Fam C §3104, there is a rebuttable presumption that grandparent visitation is not in a child's best interest if the child's natural or adoptive parents agree that the grandparent should not have visitation rights.  However, The rebuttable presumption in Fam C §3104(e) against grandparent visitation may be overcome by a finding that the best interest of the child is supported by such visitation, even over the wishes of two fit parents. Such a finding does not violate a parent's federal or state substantive due process rights. Stuard v Stuard (2016) 244 CA4th 768, 786 (parenting prerogative is broad but not unlimited, and does not extend to denying child's best interests in preserving important and continuing relationship with grandparents to whom she was very close).