Legal News

by Cassie Pierson, Staff Attorney, Legal Services for Prisoners with Children
California Courts recognize two types of child custody, legal and physical.
Legal custody generally refers to having some rights to decision-making about your child’s well being, on things like health, education, and welfare. Physical custody refers to who the child lives with.
California law also says that it is generally in the best interest of children to stay in the same living situation they have been in, because courts believe that stability is important for children. A custody order in California can be changed if there is a “change in circumstances” and it would be in the best interest of the child to have the custody order changed. Generally, courts will not change custody of a child unless it can be proven that the living situation is harmful to them. This can be a very difficult thing to prove and often requires written reports from Child Protective Services, child psychologists and other child welfare experts.
Generally, it is easier to change a legal custody order so that the parents share joint legal custody, meaning that both parents have the right to share in decision-making about their child’s well being. This is because most judges believe that it is good for parents to be involved with their child in this way. However, when you are released from prison it may take some time and effort on your part to establish that you are a responsible parent.
Before you try to change a custody order, you will need to establish a good record of having regular, consistent visits with your child(ren). Even if you choose not to pursue any legal action about your child(ren) at this time, you should try to maintain regular contact with your child(ren) through letters, notes, cards and visits, if possible. You should keep a written record of all the contact you have with your children, so that you can prove that you have tried to maintain a relationship with them. If you will be released from prison soon, you should try to establish a regular visitation schedule once you are released.