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Assuming paternity has been established, you can petition the court to determine custody and visitation of your daughter. California law does not favor one parent over the other when making determinations of custody. In accordance with California law, “child custody” has two parts—physical custody and legal custody. Either or both types of custody can be awarded to one parent (known as “sole custody”) or to both parents (known as “joint custody”).
There are two types of physical custody—sole physical custody and joint physical custody. “Sole physical custody” specifically means that a minor child will live primarily with one parent. For all practical and legal purposes, this is the child’s legal residence—as reported on school records, medical records, etc. “Joint physical custody” means that both parents will have shared physical custody. The goal of joint physical custody is to ensure that the minor child has frequent and continuing contact with both parents. Joint physical custody doesn’t mean that physical custody has to be exactly 50/50.
Whenever the court issues orders with respect to physical custody, the court will also resolve visitation issues. A proper court order will include the stated rights of each parent with respect to physical control of the minor child in such detail as to allow a parent deprived of control to include laws preventing kidnapping.
Situations where a couple can likely achieve 50/50 joint physical custody: parents live in close proximity to each other, resulting in the ability for the child(ren) to live with both parents and attend school such that this type of living arrangement does not have negative impact on the minor child(ren). For example, there are some parents that live within a mile of each other and have similar work schedules, resulting in the ability for both parents to achieve 50/50 physical custody as well as 50/50 visitation. I realize your child may not be in school now, but courts obviously have an eye on what happens when a child gets older as well.
Situations where the court will consider giving sole physical custody to one parent: situations where the parties are not married and have no ongoing relationship. For example, if father has disappeared or abandoned mother and child(ren); situations wherein the parties live so far apart as to adversely affect the best interests of the child(ren). For example, it is impossible for a child to live in two households if mom and dad live 100 miles apart.
Just as with physical custody, there are two types of legal custody—sole legal custody and joint legal custody. “Sole legal custody” means that one parent will have the legal right, as well as responsibility, to make decisions regarding the minor child(ren), to include, decisions relating to the health, education and welfare of the minor child(ren). “Joint legal custody” means that both parents share in the decision-making.
For example, if mother has sole legal custody of the couple’s minor child, she alone has the legal authority to make decisions regarding the type of school the child will attend, the type of religion the child will practice, the type of diet the child will eat, the geographic area the child will live. The mother is not required to obtain the consent of the father.
Situations where the Court will usually grant joint legal custody : 1) parents mutually agree to joint legal custody; 2) the parents are able to co-parent the child(ren) and reach agreements regarding the child(ren)’s best-interests; and 3) the court determines, after having carefully considered the facts and evidence, that it is in the best interest of the child(ren) to award joint legal custody.
Situations where the Court will usually grant sole legal custody to one parent : 1) parties cannot reach agreement on sharing legal custody; 2) there is only one parent in the picture—e.g. one of the parents has abandoned the children or disappeared; 3) the court, after carefully considering all facts and evidence, determines it is in the best interest of the child(ren) to award sole legal custody to one parent. Examples include: parents practice different religions and both strongly oppose the child being exposed to the other parent’s religion (Catholicism versus Judaism); parents fight about almost everything regarding the needs of the minor child, e.g. diet, schools, life-style, etc. In other words, if it is impossible for the parents to coordinate co-parenting, then the court will be forced to issue a court order, naming only one parent to have sole legal custody.
It is far more common, in my experience, for a child to have one primary residence, versus say, a split 50/50 custody where a child bounces back and forth. This is especially true with younger children, since it is confusing for them to go from one house to another every few days or start each new week in a different house. On the other hand , courts do prefer joint legal custody, so that both parents can have a say and work together to make decisions that affect their child.
Ultimately, in the absence of an agreement on custody between the parents, the court will make a decision based on the best interest of the child. They will consider a number of factors in making this decision, including, but not limited to such things as:
• Child’s need for stability and continuity
• Emotional bonds
• Religious practices
• Physical handicap
• Disparity of incomes
• Criminal history (if any) of the parent(s)
• Existing restraining orders
• History of domestic abuse or violence
• History of sexual abuse
Certainly the mother's instability in this country could be a factor -because if she is at risk of deportation that is something the court has to look at. Also, if you have been the primary caregiver of your child, that too plays a big role.
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