The living of a child is very important and is protected by the government. California as one of the states in United States of America has a family law regarding custody of the child and visitation that seems to favor the child more than the parents. A child is considered as a person who may not make an intelligent decision, and considering his wishes as the only ones to determine the outcome of a court case regarding custody and visitation disadvantages not only one parent, but also for his or her life in future. In this paper therefore, it has been considered wise to make it flexible for the two parents to have equal forms of custody of the child and visitations in case of divorce of the parents.
Marriage is a huge issue in the world, and for a state such as California, it present one of the hot issues being debate. There are a number of issues that are in discussion today regarding marriage and the laws that go with it. One of the hot issues is the custody of the child plus visitation. There are forth and back discussion regarding what is best about child custody and visitation in this state in United States of America. It is recognized that these issues are likely to affect marriage in the state, and if the law is not clear about what should happen, it is likely to discourage marriage not only in the California state, but also in the whole world.
This discussion therefore is of immense significance to the world in that marriage would be protected from breakages. Mostly, this issue comes after one of other hot issues namely divorce. When divorce occurs in a family, the children are put right in the middle of the tangle of the parents, and their custody and visitations is always the outcome. In most cases, the Californian courts look at how weighty the issues are; for example, if the father was irresponsible before the divorce, custody is purely put to the mother, and visitation is high restricted. However, in my argument, I present that such kind of an issue is likely to jeopardize parenting. In this paper therefore, custody of a child after divorce should be placed under the two parents in equal measure, and visitation should not be prevented at all, no matter the circumstances.
Child custody and visitation in California
There are a number of issues that have affected marriage in the world, United States of America and California in specific. According to Doskow (2012), divorce is one of the issues that have come to affect good marriages in the world, and the consequences of that are always dire. One of the issues that come the two parents decide to part ways is on who amongst the parents would remain with the child. The mother is always thought to be the right person to be with the parent while the father is thought to be capable of mistreating a child. Another issue that comes from such a decision by the two parents is on the nature of visitation. Since the mother is the most likely party to go with the child, the father is faced with the issues of visitation. In most cases in California, visitation is restricted and is decided based on circumstances prevailing.
In making a decision, the court looks at a number of factors. According to Duncan (2007), the Californian courts looks at circumstances prevailing, especially the circumstances which led to eventual divorce of the parents. For example, the father to the child could have mistreated the child and the mother, or one of the parents was irresponsible in the rearing of the child. That has always been the case not only in California, but across the states, and to some extent, the whole world. However, the courts in California have always tried to maintain the status quo; that is; the courts have always tried to rule based on how the situations were prior to the divorce. But this has always been a problem because, one party may feel aggrieved when custody is made to favor the two parents. When the mother takes the father to the court in regard to custody of the child and visitation, the mother expects that she would be given full custody and visitation of the father is restricted.
According to Harrington (Dec 29, 2010), there were new laws that were enacted in California regarding child custody, and which were to take effect from January 1, 2011. Harrington (Dec 29, 2010) note that the California family code posits that if a child is underage, the wishes of the child are to be taken seriously in granting custody. The courts shall always consider these wishes, but the intelligent preferences are always to be put into consideration before making one parent become the custodian of the child. This issue is also to apply in considering the nature of visitations; for example, if the child does not prefer to have the father visiting him or her often, the court is to decide basing on that. Such issues have been contested in this state and there are a number of emerging issues regarding such issues. Some of them are positive while others are negative. In this discussion therefore, the focus is on the merits and demerits that come with this California law on custody of the child and visitations. Overall, this paper considers that the law has demerits that are more than merits, and therefore, the law is negative in the whole issue.
Merits of Californian law on custody of child and visitation
The law is good because it protects the child. In divorce, the most considered party in making a decision is the wishes of the child. If the child is young, the mother is considered to be the best person to take care of his or her wishes, but if the child is a teenage and of good age, he or she is allowed to make a decision. This is good because the rights of the child are protected. According to Boland (2007), a child who is yet to be a grown-up or is yet to attain the age of adulthood is considered a minor. A minor is likely to be prone to a number of issues, some positive some negative. For example, it is probable that when a child is left with the father against his or her wishes, the father can abuse the child emotionally, physically or even sexually. Such cases have occurred in the world very many times, and California is not an exception to such issues.
In major situations, especially where divorce is the case, the court considers that a minor may not be in a position to make a decision. Based on this, the court always try to evaluate a number of issues that lead to the divorce, and those issues are then evaluated and interpreted to be either negative or positive for the child. For example, the father may have caused divorce with irresponsibility, and this would mean that if the child is left with him, there is all likelihood that the child would be mistreated. Such an instance would make the court consider that the best interest of the child could be with moving out with the mother to the new location. However, the mother could be the person who has caused the divorce. For example, the mother could be irresponsible and engaged in irresponsible sexual behaviors outside her marriage. In such an instance, it is likely that the court would consider leaving the child with the father. However, in all this, the decision of the child is highly considered.
The future of the child is considered in this Californian law. That is, if the child has some adequate levels of intelligence to understand how he or she wants to have a future, he or she is allowed to choose how to go about this. In divorce situations, the child may consider education and good life as a factor in choosing where he or she wants to go. For example, education is critical, and if the mother is not in a good position to provide adequate funding for his or her education, he or she may consider being left with the father as the mother seeks new avenues of living. However, the child may consider that by going with the mother, she is capable of molding his or her life in a good way, and in a manner that would drive him or her in fulfilling his or her dreams. Such issues are always important, and the courts are always bound to protect such kind of ambitions. That is why the intelligence of the child is highly considered and has to be protected at all times. Failure to do this would mean that the court is acting as the ‘devils advocate’, and that would be ruining the ambitions the child has.
Custody of a child means keeping the child until he or she attains the right age to decide on his or her own. Therefore, in most cases, the court makes decision based on the fact that this child cannot make a decision that would favor him or her in future. A child is bound to say anything in court based on the kind of favors he or she gets from any of the parents. For example, in the eyes of the child, the mother could be the best as compared to the dad, and based on this, the child is likely to decide to go with the mother. On the other hand, if the child gets lots of favors from the dad, he or she is likely to tell the court that he or she wants to live with the dad. That is why the court has to look at a number of factors surrounding the divorce issue and make an independent decision other than the one given by the child or the parents.
The other issue related to divorce and Californian family law is the issue of visitation. According to Gould (1998), visitation of the child is decided based on a number of factors that are evaluated by the court. However, just like it is with the custody issue, the child is given some rights to decide on how he or she would want in regard to the nature of visitation. This issue has always been positive in California, and because the issue has been re-energized with the 2010 law on visitations, there are positive outcomes. People are emotionally affected whenever the issue of divorce comes up, and the child is the biggest victim of such an issue. The court is bound to protect the child from being affected further when it comes to visitation, especially when the child favors one parent over the other. An underage person is vulnerable to lots of emotional effects, and this has to be protected. That is why the decisions of the courts are supreme and have to be based on what is the best for the child. The family law regarding this posits that the issues have to be evaluated well before the court could come up with a final decision. This is very positive, and mostly, it takes years before this can be decided fully. By and large, visitation is decided based on what the child feels is the best and what can benefit him or her.
The above is positive and has to be supported. The issue here is that the rights of the child are considered instead of considering what the parents feel like doing. For example, if the stand of the mother is to be considered, it would be that the father will never visit the child, and if the preferences of the father are to be considered, it would be that he or she would be visiting the child as he or she wishes. The child is caught right in the middle of such a struggle, and he or she is the one who goes at a loss due to such an issue. Therefore, the rights of the child have to be supreme when it comes to that, and if the child has enough intelligence to make a strong decision, such a decision is taken is taken as final.
Demerits of the family law in California regarding custody of child and visitation
There are a number of disadvantages that result out of the decisions of the court to grant the child as the sole determiner of what is to happen regarding custody of the child and the nature of visitation. It is considered that the father and the mother have full rights regarding visitations and custody of the child. For example, the child is always close to one parent, and the decision he or she is likely to make will depend on the parent he or she is most close to. For example, if he or she is most close to the father, it means that the child would favor the child in making the decision about visitation and custody. Ihara (2008) writes on this and notes that the role of bearing a child is to the two parents and not one, and even where one parent is considered as best placed to keep him or her, the other has responsibility of preparing his or her future.
It is always important to avoid conflicts that are likely to emerge if a decision is made favoring one of the parents. One way of reducing conflict in the child is by letting the two parents have equal share of custody and visitation. It is a disadvantage if one of the parents is favored by the child, and since the child is only likely to make a decision to favor one child, the court has to intervene. There are all likelihoods that making such a decision would one day make the child suffer. For example, by favoring the mother, the father is likely to abandon his duties to take care of the child; for example, in giving the child the right forms of education in future. On the other hand, if the father is favored by the child, it is probable that the mother would abandon her duties of guiding the child towards the right direction of life. This therefore makes the decision by the court to give the decision of the child precedence disadvantageous.
This issue can also be analyzed looking at the likely outcomes of giving the child precedence other than letting the two parents have equal ownership of the child. The father is likely to be affected emotionally if he is not allowed to visit his or her child regularly. Given that the child has to have parental love from the two parents, denying one of the parent rightful custody of the child would only make him or her emotionally affected. A child aged less than 10 years is not likely to make a decision that would favor the two parents. If the court is to ratify the decision made by such a child, it would mean that the intelligence of the mother or the father is not considered or ignored.
According to Baker (2007), the future of the child can be jeopardized by the kind of decision a court can make. For example, if the court makes a decision that the child is to be left with the father or is to go with the mother, there are likelihoods that the child would feel alienated and may suffer parental alienation syndrome (PAS). Whenever the parents divorce, the child is always subjected to some emotional stress, and that is why any decision has to be evaluated in terms of what is likely to happen. As would be discussed, the best way to go would be to grant the two parents equal forms of parenthood, custody, and visitation, and this way, the child would feel as being taken care by the two parents, despite living differently.
Whenever there is confrontation between parents, the thought is always on the kind of impacts such would have on children. It is always important to consider the well being of the child before the two parents can make concrete measures. If one of the parents is given full custody of the child, this child may feel alienated from the other, and if the other parent is not given enough visitations, the child, who may not be aware of the decisions taken by his other parents, may come to hate the other family. Therefore, it is very important for the court to make a decision that will not jeopardize the living of the child. It is also very important to consider the wishes of the father or the mother. It is likely that the two parents would want to have custodies of the child and equal forms of visitations. A court granting only one parent full custody and a restrictive nature of visitation would only make the other parent feel disadvantaged and emotionally affected. In this therefore, the way to go is to make sure that the two parents have equal custody of the child and a non-restrictive nature of visitation.
As written by Oliphant (2007), California family law regarding custody of the child and nature of visitation considers mostly the wishes of the child and some circumstances surrounding divorce and separations. Overall, to avoid one parent and the child being disadvantaged, granting equal chances to custody and visitation are the right way to go. It is possible, but it has to start with one parent going with the child, as the full custodian of the child. However, during holidays and other free days for the child, this child should be taken to the other parent and stay with him or till the free days or school holidays are over. This way, there is no parent who would feel that he or she has been denied custody of the child, and the love of the two parents would be given to the child because he or she belongs to the two parents.
The issue of visitation is also critical and has to be considered with sobriety instead of making it restrictive. As far is there are no negative outcomes of one parent visiting the child, it should not be restricted. For example, if the child stays full time with the mother, it is good if the father could be allowed to visit him or her without restrictions. A good is where the child can visit the parent not living with him or her as he or she wills, and for the parent not living with the child to visit the child as he or she wishes. The child has to have the love from the two parents, and until he attains the right age to make a strong decision, it is good if this is to be made free and non restrictive. In a situation where custody is equal as discussed, the parent who at a particular instance is not living with the child can visit the child in the other homestead as he or she wishes. It is the best way to make the living of a child comfortable and to grant the two parents equal rights to living with the child. This Californian law has to be repealed so as to make it easy for the child and the parents.
This discussion has centered on one of the family laws which has been enacted in recent times. Family laws aim at deciding the best way for the child and for the parents, and most family laws revolve around the living of the child. In 2011, California started to use a family law regarding the custody of the child and visitation in the case of divorce, and the outcome was that the rights of the child have to be considered in any decision a court makes. The discussion has evaluated the merits and demerits that are present in such a law and how best to handle issues of custody of the child and visitation. As discussed, the merits are not strong enough to make a strong law. Therefore, this paper has evaluated that it is in the best interest of the child and the parents for the court to allow equal forms of child custody and visitations.