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Posted on in Child Custody

IL family lawyerChild custody is complicated no matter the circumstances of a parent’s particular case. Not only are custody battles complex, but they are often stressful times for everyone involved. However, the stress and complexity of a child custody case can each take on new dimensions when one parent is not a U.S. citizen. A San Jose child custody attorney can help explain what options you have today.

Types of Custody Available for Non-Citizen and Citizens Alike

Even though one of the parents is not a U.S. citizen, they will be given a fair chance at gaining custody rights over their American citizen child or baby. The custody decision may be one of the following:

  • Sole legal custody;
  • Joint legal custody;
  • Joint physical custody;
  • Visitation rights; or
  • No custody or visitation rights.

California courts will always choose a living situation and custody arrangement that is in the best interests of the child. This remains true even when one parent is not a U.S. citizen. As such, it is important to understand this vital question: “what are the best interests of your child?” The court will analyze the following factors (and more) to come up with a decision:


CA family lawyerYou may be limited to just a few hours every couple of days, or an overnighter on the weekends, but this time with your child will go a long way in cementing your relationship with them and creating or maintaining a bond that will last a lifetime. A parent who has just gone through divorce and was awarded visitation time only, rather than shared custody, may lament the court’s decision, but it is important to keep a positive attitude for your child and to maximize the quality of time that you do have with your son or daughter. A San Jose child visitation and custody attorney can help you with visitation or custody and can offer suggestions on what to do with your child, how to make a plan, and other questions you may have.

Make a Schedule and Keep To It

According to the Centers for Disease Control and Prevention (CDC), the building blocks for structure are consistency, predictability, and follow through. Structure is important for children—so important, in fact, that the CDC, recommends creating structure in the following ways:


CA custody lawyerDomestic violence is the most common felony offense in the U.S., and it goes largely unreported. Another unreported aspect of domestic violence is when the abuser harms their own child, which is more common than the average person might think. In fact, 30 to 60 percent of children living in abusive homes are, in addition to the other victim, physically or sexually abused themselves, according to Stop Violence Against Women. This startling fact is one of the main reasons that judges side with the victims of domestic violence when the couple splits up and child custody becomes an issue.

Child’s Best Interests

The court will always side in favor of the child’s best interests, and obviously being sexually or physically abused is not in their best interest. Moreover, even if children are not abused themselves while living in a home where domestic violence occurs, they are still more likely to suffer from emotional, behavioral, developmental, social, and learning problems. Early childhood trauma, such as seeing their mother get slapped, pushed, or threatened, can follow a child into adulthood, causing depression, anxiety, alcoholism, and lower economic status.


California custody lawyerHaving been through a divorce or separation, your child has already suffered a high degree of emotional trauma. Enough early childhood trauma can cause serious developmental issues in regards to future relationships, education, emotional stability, and general happiness. According to Mental Health Connection, divorce/separation or loss of a loved one (parent) is an early childhood trauma. With that said, it is crucial to provide as much emotional and physical protection for your child in the years to come, and this includes protection from the other parent who has custody and who you know is not fit to be looking after your child. One common type of problem that our lawyers have helped solve is when a parent with custody, or a parent with visitation rights, is living in an unfit residence that poses a threat to your child. If you are in a custody battle or believe that your child’s well being is being put at risk from a parent with custody or visitation rights, you need to contact a San Jose custody attorney as soon as possible.

Types of Dangerous Residences

A home needs to be safe and clean, and the living conditions need to be stable. If non-family members are coming and going at odd hours, dangerous acquaintances or romantic relations spend time at the residence when your child is there, or the dwelling itself poses a physical risk, there may be grounds to revoke custody or visitation rights. A judge will always side with the child’s best interests, which may align with having a safe living environment over maintaining the living relationship with the other parent.


California custody attorneyOne of the greatest challenges that parents face during divorce is keeping their feelings under control, and keeping their mouths shut when discussing the other parent in front of their children. Children are smarter and more intuitive than we often give them credit for. Even a young toddler still learning to speak can sense the hostility that is being directed toward a parent when the other is talking about them behind their back. Alienating a parent has life-long lasting implications for children, causing low self-esteem, self-hatred, depression, substance abuse, lack of trust, and more. It is in your best interest to contact a Santa Clara County custody attorney to discuss the dos and don’ts of how to behave during a child custody battle.

Posting Online

It is important to remember that the other party can and will use everything to their advantage. This means that if you post negative comments, send threatening emails or texts, or come off as the bitter, angry party, it will be used to your disadvantage. Keeping a calm demeanor is both important in the courtroom, as well as out.


California family attorneyYou may have heard that California family courts make custody and visitation decisions based on the best interest of your child. But what does that really mean? An experienced Santa Clara County child custody attorney will be able to give you a detailed answer to that question.

Factors that Contribute to a Child’s Best Interests

When the court makes a decision regarding the custody of your child or the visitation rights that you or another party may have, the court looks solely at what is in the child’s best interests. Usually, it is in the child’s best interests if the two parents share custody equally, though that is not always true and is not always possible given the location of each parent or their relationship with each other. Here is a closer look at what ‘best interests” actually means:


Posted on in Visitation

California divorce attorneyWhile it is ideal for children to see their parents in person, there are a lot of changing circumstances to a child visitation schedule that can prohibit physical contact. The children may travel with one parent for an extended summer vacation, one spouse may relocate for a job, or a child’s day may be too busy with school and sports to travel between homes. In these circumstances it may be useful for parents to take advantage of electronic communications to connect with their children on a regular basis. If you or your former spouse are looking to make changes in your parenting plan or are trying to incorporate virtual visitation into your scheduling, contact an experienced San Jose child custody and visitation lawyer to learn more. We will assist you throughout each step of your case.

Types of Electronic Communication

One of the most common devices used to communicate virtually is the cell phone. According to the CTIA Wireless Foundation, 38 percent of children who are two or younger have used a cell phone to access media. Even if a child is young, they can still engage with an absent parent via electronic devices with the help of an adult. Children can also connect with parents on tablets, computers, video gaming systems, and more. Communication can include:


California custody lawyerMany may be surprised to find out that the vast majority of child abductions are initiated by parents and family members. In fact, the most common cause of child abduction is during a child custody dispute between parents or families. To be sure, 78 percent of all family child abductors are noncustodial parents of that child, according to Child Find of America. If your child has been abducted, or you have been accused of abduction as a parent, you need to seek legal help at once from a San Jose family law attorney.

Parental Child Abduction

Only 115 cases of missing children or abductions involved an abduction from a complete stranger, which amounts to one-one-hundredth of one percent, according to the Washington Post. Most children either get temporarily lost on their own or are taken by a family member, usually a parent. That parent, who is typically the noncustodial parent, although in some cases may not bet, abducts their own child because they:


Posted on in Child Custody

California family lawyerChild custody can be a complicated topic for those that are new to it. If you are in a legal battle over your child’s custody, or if you believe that it will come to that eventually, it is important to not only work with an experienced family law attorney, but to fully understand what custody means in all of its forms. Contact our office today to discuss your concerns and your goals with one of our experienced child custody attorneys.

Legal Custody

In most court decisions, as well as out of court agreements, legal custody of children is split between both parents equally. Legal custody gives the parent or parents the ability to make important decisions about their children, such as healthcare, education, and religion. Legal custody can either be joint or sole. In a joint legal custody scenario, both parents would have equal decision-making rights. However, if only one parent has the right to make legal decisions for their child, such as the case of sole custody, the other parent is not allowed to make decisions. If they do, they could be held in contempt of court and risk losing other custody or visitation rights. If you have split legal custody, however, it does not mean that you and the child’s other parent have to agree on every decision, according to California law. Working together to come to a middle ground may be necessary much of the time.


California family law attorney, California custody lawyerNot all marriages or separations end peacefully. When you are engaged in a custody dispute with the other parent, the relationship can turn even more sour. During this time it is important to keep the negativity at bay when you are around your child because of the difficulties they are going through, as well as the implications that it could have on the custody outcome. Everything you do and say around your child can be taken into consideration by the court if it is being documented by the other parent. Similarly, everything they say and do can be used against them as well. When deciding which parent will receive sole custody, the court always chooses in the best interest of the child, according to California Code 3040. To ensure that the court has all the information that it needs to make this crucial decision in your favor, it is important that you begin collecting information and documenting all types of interactions that the other parent has with your child. This should begin immediately and continue until a final decision has been made by the court.

Similarly, everything they say and do can be used against them as well. When deciding which parent will receive sole custody, the court always chooses in the best interest of the child, according to California Code 3040. To ensure that the court has all the information that it needs to make this crucial decision in your favor, it is important that you begin collecting information and documenting all types of interactions that the other parent has with your child. This should begin immediately and continue until a final decision has been made by the court.

What Type of Information Do I Need to Document?


California custody lawyer, California family law attorneyWhether your parenting plan is mandated in court or is a guideline for you and your child’s other parent to use more informally, it is important to follow regardless. By following a well-crafted parenting plan, you can avoid confusion, conflict, and accidents down the road, and help to establish or maintain a positive working relationship with the other guardian.

Living Arrangement

There are many types of living arrangements to choose from if both parents are willing to share their time equally and are open to joint custody. The child may live with one parent on the weekdays and the other on the weekends. Or, they may live with one parent full-time and only spend visitation time with the other parent. While not as common, some parents decide to keep the child at one home while they take turns moving in and out, living in another home when they are not with the child. This is termed “bird nest custody.”


Posted on in Child Custody

California child custody attorney, California family law attorneyIt is important to remember that the court will always choose what it believes to be in the best interest of your child. Whether a parent is abusive, constantly late for scheduled pick ups, or has a drug or alcohol problem, the court will take that information and make a decision based on the negatives that those characteristics bring to the table. The court may eventually decide, or decide right away, that a particular parent is a potential threat to their child’s well-being, and put restrictions on their visitation rights. Often, that restriction is to only allow supervised visitation. Whether you have had restrictions put on your visitation, you believe that the non-custodial parent should only be allowed supervised visitation, or you simply want to learn more about visitation orders in general, contact a skilled family law attorney for answers to your questions, as well as for immediate and experienced assistance.

Reasons for a Supervised Visit

The court may order all visitations for a parent to be supervised by a third-party person for various reasons. There may be a threat to the child or there may be a need to slowly establish a long-lost relationship before normal visitation can occur. The court will also determine the length and location of these supervised visits, according to California law. There are many reasons why the court may deem supervision a necessity, including:


California family law attorney, California custody lawyerWhen it comes time for a judge to determine custody and visitation rights, the child’s (or children’s) well-being takes priority. The court will always choose in favor of the child’s physical, mental, behavioral, and emotional well-being, and custody and visitation will be granted accordingly.

It can seem entirely unfair for a mental health disorder to determine whether or not a parent will be able to visit their child on a regular basis, but that is often one of the factors that the court considers. After all, parents who suffer from certain mental illnesses pose a potential threat to their children’s mental and emotional well-being, according to various research outlined by the Institute for Family Violence Studies under FSU's College of Social Work.

The determining factors of visitation rights are often based on the non-custodial parent’s:


California child custody attorney, California family law attorneyThere are two ways in which divorce is possible in the state of California, according to the State Bar of California: irreconcilable differences and incurable insanity. If only the aftermath was a simple and straightforward as that. Divorce is common in our society, and even if a couple was not married at the time of their child’s birth, the complications that stem from a custody battle still apply. If you and your partner are not able to come to a joint decision on custody, the court will make the decision based on a variety of factors, namely, who will be able to provide the best care and home life for the child. Contact a skilled attorney today to discuss your custody options, which are split into five specific categories.

Sole Legal Custody

In a case of sole legal custody, one parent has the full authority of the court to make decisions for their child. These decisions include all aspects of the child’s day-to-day activities, education, and healthcare. Sole legal custody is granted when one parent is absent, abusive, has a history of violence, abuses alcohol or drugs, is otherwise dangerously irresponsible, or the parents are unable to avoid conflict with one another.


California custody attorney, California family law attorneyIn the past, if the parents did not agree upon shared custody, the court usually granted primary custody to the mother, as it was deemed that she would have more time to provide for the child and would provide better care. While the judge would give sole custody to the mother, the father would be given visitation hours and would be required to pay child support. The reasoning behind this aging dogma was that the father would be better suited to providing financial assistance through his job, while the mother better suited to home making and caring for children. As women gain rights in the workplace, this practice is becoming more and more outdated in most states, including California. While women still only earn 81 cents for every dollar that men make at the same job, that number used to be 62 cents on the dollar back in 1979, per the International Labor Organization.

According to California law, if the parents cannot reach an agreement on custody rights, the court will make the decision based on what is best for the child. According to California Courts, these factors include:

  • The health of the child;
  • The emotional ties between the parents and the child;
  • The ability of the parents to care for the child;
  • Any history of family violence or substance abuse; and
  • The child’s ties to school, home, and his or her community.

There is no law that states the mother will be given priority if all other factors are equal. However, if you feel that you are not being given an equal chance for custodial rights, it may be time to contact an experienced child custody attorney to argue your case for fair and equal representation. Additionally, the court is not legally allowed to deny your custody or even visitation rights based on the following factors:


Calfornia custody attorney, California child abuse lawsAn addiction can be the single most crippling setback that an individual faces in their lifetime. However, when children are involved, it may just be too much to overcome. A parent with an addiction unleashes incredible hardships and even dangers upon their children. Addictions tear families apart by removing home stability, the family’s unity, finances, and families’ physical and mental well being.

A parent's addiction not only presents a threat to the development of the children exposed to the addiction, such as causing poor grades and not being properly cared for, but it also increases the likelihood that the children will one day abuse a substance as well. In fact, one in three children will have begun drinking by the age of 13, according to the National Council on Alcoholism.

Because of this, the state (California’s Child Protective Services) may remove children from drug or alcohol-abusing homes or parents. Likewise, in the scenario of a divorce, the parent without the addiction will likely be given custody of the children because of the healthier, more stable environment that will come with a sober parent as opposed to an addicted parent. If you are going through a divorce that is complicated by the presence of an addiction to alcohol, prescription painkillers, or illegal drugs, contact an experienced San Jose child custody attorney today for a consultation about the direction you wish to go.

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