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There is probably no other area of Family Law more contentious and stressful than Child Custody and Visitation. Often, both parties want to retain primary physical and/or legal custody of children. Child Custody and visitation decisions are some of the most important aspects of a divorce or dissolution proceeding. In the State of California, either parent may be entitled to sole custody or both parents can share joint custody of their child or children. Once an order is in place, it may be difficult to change it at a later date, unless there is a substantial change of circumstances.
Fighting over your child is expensive, time-consuming and emotionally damaging to everyone involved, especially your child(ren). But knowing your rights as you begin the process and acting proactively is of critical importance. It is essential to hire an experienced lawyer who specializes in custody litigation, as it could make all the difference in obtaining the results you want. |
| Factors the Court Considers in Making Custody and Visitation Orders |
The over-riding policy in California is (1) to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and (2) to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child.
Unless the parties can agree on a child custody arrangement, both parties likely will be ordered to attend a mandatory mediation at Family Court Services. The “Best Interest of the Child” is the standard to which decisions are made in a custody proceeding. The following is a list of factors that are considered by the Court in making a custody and visitation order:
1. The child’s gender, age, physical and mental health
2. The child’s established day to day schedule
3. How changing the current living situation might impact the child
4. The parent’s physical and mental health
5. Domestic violence in the home
6. Physical or mental abuse in the home
7. The parent’s lifestyle
8. Emotional connection between the parent and child
9. The parent’s ability to provide for the child
10. The parent’s ability and willingness to foster contact and healthy communication between the child and the other parent
Backes & Associates can assist clients in presenting to the Court why one parent should have primary custody or why one parent should not be denied joint custody.
If the parties can mutually agree on a child-sharing plan, the agreement still needs to be in writing and ordered by the court. Otherwise, the agreement will not be legally enforceable. Backes & Associates is available to prepare the necessary court documents. |
| Joint Custody vs. Sole Custody |
Joint legal custody is when both parents have equal rights and responsibilities for major decisions concerning the child, including the education of the child, health care, and welfare. The court may designate one parent to have sole power to make certain decisions while both parents have equal rights and responsibilities for other decisions.
Joint physical custody is when custody is shared in a way that gives both parents frequent and substantial contact with the child. It does not necessarily mean that the child spends half of the time with each parent. Instead, the child spends blocks of time with each of the parents, who share the right and responsibility to raise the child in their homes. Each parent has more than simple visitation privileges.
Sole physical and joint legal custody: This is where the child resides with one parent, subject to the other parent's visitation rights. Although one parent is the sole physical custodian, the other parent still has decision making power about how the child should be brought up. (e.g., whether child should attend public or private school).
Sole legal custody: This is where a parent has the exclusive right to make decisions regarding the child's health, education and welfare. This however is normally ordered along with exclusive physical custody to one parent.
Exclusive custody ("legal and physical”): This is where the child resides with one parent. The custodial parent has the exclusive right to make certain decisions regarding the child's residence, health, education and welfare. The non-custodial parent usually has reasonable visitation rights. |
| What Should Be Included in a Custody and Visitation Order? |
Part time custody of your children is the most painful part of divorce for most parents. What are your legal rights when you're a part-time parent because of divorce?
What's written in the court order on custody, sometimes called a "parenting plan" or "child-sharing schedule," is what's legally enforceable. So it's very important to think through any difficulties you and your soon-to-be-ex may have making a parenting schedule that is workable for you before you mutually agree in writing or go to court.
Issues that should be dealt with in detail in your court order regardless of how much time you get to spend with your child(ren) include:
1. Exact days and times the children will spend with you. Phrases like "reasonable visitation" don't get you far when you're dealing with an uncooperative custodial parent.
2. Choosing holidays the child(ren) will spend with you, and the exact days and times these holidays will begin and end
3. Specify types of contact children can have with you during the time they're with the custodial parent, including phone calls and emails
4. You should always participate in the childrens' school and extra-curricular activities, and the custodial parent's duty to inform you of these events
5. You should always have access to school and medical records
6. Plan for transportation for the child(ren), especially if you live far away and transportation is expensive |
| Enforcement of a Custody Order |
If you've already got a custody order, how do you enforce it when the custodial parent doesn't honor it? If it's an occasional problem, try to be flexible in rearranging your schedule. If the problem persists, you'll want to document the violations of the order before seeing an attorney. An easy way to document violations of a custody order is with a simple log or calendar, writing notes about the time lost with your child and your efforts to reschedule the visits. After you can show a pattern of behavior, you can work with a lawyer to get the order enforced in court.
In California, consistent violations of a custody order can be grounds for changing custody, especially if the custodial parent is making negative remarks and withholding information about the children from the noncustodial parent. The custodial parent must be able to ensure the other parent has access to the child.
One mistake many non-custodial parents make is to threaten to withhold child support when the custodial parent withholds visitation. There is no legal connection between the right to see your child and paying your child support, and a judge may hold your failure to pay your child support against you when you finally make it to court to enforce your visitation rights. When a parent fails to make scheduled child support payments, that parent may lose their California drivers license and professional licenses.
As your children grow and mature, it will probably be necessary to change the visitation schedule to meet their needs. If the custodial parent is cooperative, it's best to try and work out an agreement between you, rather than going to court and having a judge decide. You'll want to get the new arrangement in writing and entered as a court order in order for it to be enforceable. If the other parent is not cooperative, you will need to go back to Court to get the custody and visitation order modified. |
| Reasons for modifying a custody and visitation order can include: |
1. Changes in the living arrangements or work schedules of either parent
2. The wishes of children mature enough to decide they'd like to spend more time with you
3. Extra-curricular activities or changing medical needs of the children
4. One parent wishes to move away with the children
5. Abuse or neglect by the other parent |
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| Backes & Associates offers excellent professional services in all aspects of Family Law including Divorce, Legal Separation, Domestic Partnerships, Child Custody and Visitation, Child Support, Spousal Support, Domestic Violence, Restraining Orders, Division of Property, Grandparent Rights, Premarital Agreements, Paternity and Adoptions. |
| Serving San Diego County, including North County, East County, and South County and, specifically including, the following areas: Pacific Beach, La Jolla, Bird Rock, Del Mar, Solana Beach, Cardiff, Encinitas, Rancho Santa Fe, Olivenhaim, La Costa, Carlsbad, Fairbanks Ranch, Oceanside, Vista, San Marcos, Escondido, Fallbrook, Rancho Bernardo, Rancho Peñasquitos, Mira Mesa, Poway, Point Loma, Coronado, Downtown, Miramar, Imperial Beach, Sorrento Valley, Carmel Valley, Temecula, Ramona, Alpine, El Cajon, Spring Valley, Chula Vista, San Ysidro, Julian, Clairemont, Lakeside, Jamul, Golden Hill, North Park, South Park, Hillcrest, Mission Hills,University City, UTC, Ocean Beach, Mission Beach, Scripps Ranch, Bonita, Borrego Springs, Valley Center, Lemon Grove, La Mesa, College Area, Linda Vista, Allied Gardens, San Carlos, Santee, Eastlake, Bonsall, Murrieta, San Clemente, San Juan Capistrano, Laguna Niguel, Mission Viejo, Lake Forest, Aliso Viejo, Dana Point, Orange County and Riverside County. |
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| DISCLAIMER: |
| The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Neither this web site nor its contents create an attorney-client relationship. |
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