In a divorce that involves children, the biggest challenge is how to minimize the negative effects on your children. Going from Mom and Dad under one roof, to two roofs, is not easy, especially in a high-conflict divorce. In California, either parent can have custody, or the parents can share custody.
We encourage both parties to be reasonable. Take a step back from your own personal emotions. Seek counseling if necessary. Parents that separate will need to have a plan for deciding how they will share and divide their parenting responsibilities. This plan can be called a parenting plan, a time-share plan, or an agreement ("stipulation") regarding child custody and visitation. Any plan must be in writing and signed by both parents and a judge. The judge makes the final decision but usually will approve the arrangement both parents agree upon. Work together, not separately, at developing a working parenting plan for your children. Many, if not all, custody disputes can be settled outside of the courtroom.
“If we don’t stand up for children, then we don’t stand for much.” – Marian Wright Edelman
Types of Custody
Legal Custody. Legal custody determines which parent will make decisions concerning the child's or children's health, safety, education, and welfare. One parent can make these decisions alone, which is known as sole legal custody, or both parents retain the right to make these decisions, known as joint legal custody. Joint legal custody means both parents should cooperate on decision-making, but that either parent has the power to make decisions alone.
Physical Custody. Physical custody determines where the child or children will reside. Sole physical custody means the child or children live with one parent and visit the other parent. Joint physical custody means the child or children reside with both parents. In the case of joint physical custody, if one parent will have the child more than half of the time, then that parent can be labeled the "primary custodial parent" for tax and other purposes.
If unfortunately the parents cannot reach a solution and agree on a parenting plan, you will have to resolve the issues in court and a judge will make a decision at a court hearing. The court will decide your case on a case-by-case basis, in the "best interests of your children". You, or the court may decide to utilize the services of a child custody evaluator. This process is lengthy and very costly.
Before the Judge will hear your case, you will need to go to Conciliation Court. There, a trained mediator will hear your case, and attempt to reach solution one last time before the court hearing. In Los Angeles and Orange County, an appointment is free, and can be schedule by calling (213) 974-5524.
The judge will usually not make a decision about custody/visitation until after the parents have met with a mediator. Parents can also hire a private mediator. If mediation doesn't work, the judge will make a decision at a hearing. In some courts, the mediator will make a recommendation to the judge about custody/visitation orders. Ask the mediator how the process works in your local court. The judge may appoint an evaluator to recommend a parenting plan.
A parent can also ask for an evaluation, but the request may not be granted. Parents may have to pay for an evaluation. The judge also may appoint lawyers for children in custody cases. The law says that judges must give custody according to what is best for the child.
After a judge makes a custody/visitation order, one or both parents may want to change the order. If the parents can't agree on a change, one of the parents must file a motion with the court asking for a change. If you want to change your order, you and the other parent will probably have to meet with a mediator to talk about why you want the order to change.
Custody and Visitation
Under normal circumstances in a dissolution of marriage action or a paternity action the parent who is not the primary residential custodian of the minor child will be awarded reasonable visitation rights with the minor child unless the Court finds that the visitation would be an endangerment to the child or would adversely affect the well being of the child.
The term reasonable visitation rights does not provide the non-custodial parent any explicit visitation rights. Describing the parent's visitation rights as “fair and reasonable visitation” is a common practice in uncontested dissolutions of marriage, however, the parent who receives “fair and reasonable visitation” is not receiving a right which is easily enforceable by a Court of Law. What exactly is “fair and reasonable visitation?” In most cases it is an unknown. What is fair and reasonable to the father may not be fair and reasonable to the mother. In the long run, if the parties cannot agree as to the terms of the specific visitation, one of the parties is going to be required to set a hearing before the Court to have the Judge set forth a specific visitation schedule.
It is a better practice to determine the specific periods of visitation prior to the entry of a visitation order. If the parties cannot agree as to the visitation schedule then the issue should be litigated now, instead of in the future, after the father and mother have already had disagreements concerning the visitation. These disagreements may cause a breakdown in communication and a termination of any contact with the minor child. If a minimum visitation schedule is specifically spelled out in the beginning, and the custodial parent refuses to allow the scheduled visitation the other parent has the right to enforce the visitation order and in some cases bring a contempt of court action against the custodial parent.
There is not a standard visitation schedule set out in California. Each couple's situation is different and must be discussed before a visitation agreement is entered into. Issues such as the age of the children, the relationship of the father and mother, where the visitation is to take place, year-round schooling and other school considerations, special needs of the children and other matters need to be considered in each individual case.
Under certain circumstances restrictions on visitation rights may be applied by the Court. Although, restrictions on visitation are generally disfavored, the Court has the power and ability to do what is in the best interests of the minor child or children. The Court has the discretion to restrict or limit visitation in any manner necessary to protect the minor children.
In certain circumstances a parent may be denied all visitation with their minor children. A grandparent may file a petition for visitation rights and the Court may grant the petition if it is in the best interests of the minor child and (1) one or both of the parents are deceased; (2) the marriage of the parents has been dissolved; or (3) the child has been deserted. Issues concerning visitation should be reviewed with an attorney who is familiar with this area of the law.
If you have any further questions or need additional information about our Family Law services, please do not hesitate to call (714) 441-5905.
- Developing a Parenting Plan
- Developing a Parenting Plan with a Holiday and Vacation Schedule
- Parenting Plan Model for Children Under Age 3
- Parenting Plan Model for Children for Age 3 – 5
- Parenting Plan Model for Children for Age 6 – 9
- Parenting Plan Model for Children for Age 10 – 13
- Parenting Plan Model for Children for Age 14 – 18