A divorce is always difficult, but if you’re a parent, the worst part may be not knowing what will happen to your children. If your children are living in an unfit environment during or after your divorce, make it a priority to obtain legal help from an Orange County family law attorney.
If you have evidence that the other parent is neglectful, abusive, and/or unable to provide a stable home and fit parenting, discuss the matter with your attorney. If your children are your top priority, as they should be, speaking with your California divorce lawyer is the first step.
Whether you are negotiating with the other parent to create a custody plan prior to a final divorce decree, or if negotiations aren’t possible and you are seeking sole custody during or after your divorce, the right divorce lawyer will know how to fight effectively for you and your children.
When Negotiating is Not an Option
You may not want to negotiate with the other parent if you suspect abuse or neglect or if you have evidence that the other parent’s home is an unfit environment for your children. You should not settle for any arrangement that puts your children at risk.
In such circumstances, it’s important to maintain that you should have sole custody of your children and that the other parent should be granted only limited visitation, no visitation, or that the other parent’s parental rights should be terminated by the court.
When the divorce process begins, the courts generally presume that some kind of shared custody arrangement is in the child’s best interests, and the court will maintain that presumption unless it sees evidence that shared custody is not in fact in the child’s best interests.
What is a Family Code Section 3044 Finding?
During the divorce process, both parents and their attorneys will have the chance to explain to a family court judge why that judge should approve the child custody order that they are seeking and why they believe that the arrangement each side is suggesting is in the child’s best interests.
In California, if there is evidence that the child’s other parent has committed domestic abuse or domestic violence, ask your attorney to help you obtain a restraining order, and that will allow the court to make a Family Code Section 3044 finding.
What Will a Family Code Section 3044 Finding Accomplish?
A Section 3044 finding will give a parent who has obtained a restraining order the sole physical and sole legal custody of the children. If there is evidence that the children’s other parent has committed domestic abuse, that parent will face an uphill battle in a custody or visitation dispute.
Family Code Section 3044 provides that when there is evidence of domestic violence or abuse, “an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child.”
California law allows the other parent to challenge a Section 3044 finding because, as you may know, claims of domestic violence or abuse are sometimes fabricated in custody disputes. The other parent will have a chance to clear his or her name and prove that the claim is unfounded.
What is Considered in a Child Custody Dispute?
But even without domestic violence or abuse, if the other parent is involved with criminal activity, illegal drug use, or excessive alcohol abuse, your attorney will know what steps to take to protect your children and to restrict or terminate the other parent’s parental rights.
A California family judge will take into consideration these factors – and other pertinent factors – in a custody dispute:
1. the fitness of each parent and their history with the children
2. any parental history of domestic abuse or violence, alcohol abuse, or drug abuse
3. whether one parent has made an exaggerated or fabricated allegation against the other
4. the preference of the child (in some cases)
When Can Visitations be Restricted or Denied?
During or after your divorce, if you are awarded sole custody of your children, their other parent usually expects and is allowed to have visitations. However, if a court finds that the other parent has engaged in domestic violence or abuse, the court will probably require supervised visitations.
Visitation may be entirely denied to that parent only if the court has found “egregious” domestic violence or abuse or if the court is convinced that the child is at risk in the presence of that parent.
In any event, when domestic abuse is provable, the court will take the appropriate action to protect your children. Supervised visitation or denial of visitation are the usual court-ordered remedies, but in the most extreme cases, the remedy is the termination of parental rights.
When May Parental Rights Be Terminated?
With a legal termination of parental rights, that person is no longer a legal parent. Parental rights may be terminated by the court for reasons that include (but are not necessarily limited to):
1. severe or chronic neglect, abuse, or abandonment of the children
2. any sexual abuse of the children
3. failing to provide financial support for or to stay in contact with the children
4. long-term mental deficiency or illness
5. long-term drug- or alcohol-related inability to meet parental obligations
How Can You Prove the Other Parent is Unfit?
Proving neglect, abuse, or domestic violence can be challenging, particularly if your children are at risk or if you don’t want them “caught in the middle” of the custody dispute. To prove that the other parent is providing an unfit environment for your children:
1. Track your children’s illnesses, absences from school, doctor visits, and other indications of abuse when the children are with their other parent. Without concrete evidence, it will be difficult to persuade a judge that your child is in an unfit environment.
2. Speak also to teachers, neighbors, and the parents of your children’s friends. They may have observed abuse, neglect, or other indications of an unfit environment.
What’s the First Step to Take on Your Children’s Behalf?
In any dispute over child custody, visitation, or parental rights in California, as mentioned previously, the first step a parent should take is to schedule a consultation with a southern California family law attorney.
Nothing is more important than our children, and the best interests of the children in any divorce or post-divorce dispute is the highest priority of California’s family courts. With help from an Orange County family law attorney, you can ensure a bright and healthy future for your children.