Child Custody & Visitation
No doubt you are here looking for answers to questions you may have about how much time your child will be spending with you and how much they will be spending with the other parent.
Below is a brief summary of some of the more common child custody and visitation that may be relevant to your matter. As you will see the child’s best interest is the first and foremost issue that courts will look toward when determining custody and visitation. However, the California Family Code does provide significant exceptions to the general ongoing and continuous contact doctrine when the child’s best interests are served by not having contact with a parent. In other words, it’s not an ironclad rule the courts have to abide by because custody schedules are tailored to each individual’s case. Your case will have facts unique to it and your child’s (or children’s) situation will also have its own set of unique facts. This means you may have issues that are not addressed here, but in no way does that mean we cannot address them. On the contrary, many if not most cases have some sort of grey area, and to cover every issue here that could possibly exist would be next to impossible. So if you do not find what you are looking for here, please call me so that we can discuss it.
- What Is The Best Interest Standard?
- How Can I Make This Easier On My Children?
- What Is Joint Custody and Sole Custody; What Kind Of Custody Will I Have?
- Can My Child Choose Which Parent They Want To Live With?
- What Is Mediation And Do I Really Have To Go?
- Does Each Parent Have Equal Parenting Rights?
- Do Father’s Have Equal Parenting Rights?
- Abuse and Neglect
- False Allegations of Abuse and Neglect
What Is The Best Interest Standard?
The factors courts will consider when trying to decide the best interests of a child include the health, safety, and welfare of the child, a history of abuse by a parent or anyone else seeking custody, whether the child is related to the person seeking custody, and of course, the parents.
So what does this mean? Well, it depends (you’ll hear this a lot from lawyers). Generally, the court attempts to balance certain criteria in each individual case. For example, in a situation where both parents are amicable, put their kids first, and agree to a simple 50/50 split there likely won’t be much to argue over. On the other hand, maybe a parent who has been relatively or completely uninvolved in their child’s life suddenly comes back into the picture and now wants more time. This will present a much more contentious situation. In either case, a court will take into account all the factors involved to determine what is best for the mental, physical, and emotional health of the children. This includes each parent’s relationship with each child, the amount of time each parent has spent and is currently spending with the child, the bond parent and child share, and numerous other factors.
You as a parent almost certainly have some strong ideas in mind about what you believe is best for your kids; and you’re probably right, or at the very least have some reasonable justification for why you believe that. Just know though that a given judge may not see things your way, which is why it is so important to have an attorney who can help navigate you through the thicket of obstacles custody matters can present. At the same time it is important for an attorney to set realistic expectations for you, yet at the same time fight for what you believe is in your child’s best interest.
Put a different way, sometimes a parent will want things they have no chance of getting. For example, one parent may want to deny the other all access to the children as a way of getting back at them for what happened during the marriage. In most cases, this is not a realistic expectation because the law favors frequent and continuing contact with both parents. In another case, a parent who’s become an addict or an alcoholic and represents a danger to the children will almost certainly not be allowed to have the kids half the time even though they want 50/50 custody. Granted, these are relatively extreme examples, but even in far less severe cases (and all cases for that matter), it is important to have an attorney assess your situation so that you understand what the possible and probable outcomes are, and by extension, what is worth fighting for and what isn’t.
How Can I Make This Easier On My Kids?
We want to protect our children. We want them to feel safe and do everything we can to ensure their happiness. However, whether you are getting divorced or if you and the other parent were never married, a custody situation is most likely going to put your children under some stress. So what can you do to make it less difficult on them?
- Be civil to the other parent; be the better person even if they refuse to be civil to you.
- Be a cooperative and flexible co-parent; abide by and respect agreements you make.
- Do not speak poorly of the other parent in front of your children; do not put them in the middle of your fight.
- See a therapist or a counselor if you are able to.
There is an old saying that just because something may be simple, that doesn’t mean it’s easy. And such is the case here. It is simple for me to tell you to be the bigger person, but the fact of the matter is that it is may be incredibly difficult to do. You’re a human being, which means that despite your best efforts, sometimes you will make a mistake, say the wrong thing, or do something you regret. That’s okay. The goal here is not to be perfect; it’s to keep working at being a good co-parent so that you make progress over time. Clearly, it is what’s best for your kids, but it’s also what’s best for you and your own peace of mind and well-being.
What Is Joint Custody and Sole Custody? What Kind Of Custody Will I Have?
There are several different ways in which parents share, or in some cases do not share custody of the children. The following definitions may be helpful, but your unique circumstances are highly relevant to the outcome of your case.
"Joint custody" means joint physical custody and joint legal custody. “Joint legal custody” means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. This does not necessarily mean a 50/50 share of the children. Parents can have joint custody but have unequal time with the children.
“Joint physical custody” means that each of the parents shall have significant periods of physical custody (but not necessarily equal time). Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.
"Sole legal custody" means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. For example, if mom has sole legal custody of the child, she gets to choose what doctor the child will see and where the child goes to school.
"Sole physical custody" means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation. Sole physical custody is often referred to as “primary custody.” Note also that sole physical custody does not necessarily mean the parent has sole legal custody too.
So what will you end up with? Again, it depends on your circumstances. A spouse who is physically abusive to their children may very well find the other parent with sole legal and sole physical custody, and being allowed only very limited and supervised visitation—or possibly no visitation at all. In most cases though, some form of joint custody is ordered.
A person who is afraid of having their spouse awarded any kind of sole custody may wonder whether they will be able to be awarded joint custody. Generally, joint custody is awarded based on time. That is, if a parent will only be spending 10% of the time with their children, the chance for joint custody may go down. If the time is 35% or more, then the chance increases. However, these are very general numbers and are by no means set in stone.
Custody schedules can vary greatly. In a case where 50/50 is ordered, a week on/week off schedule may work best for you and your children, or it may not. If not, some other combination of days and weekends that amount to a 50% time share can be made as long the schedule isn’t disruptive to the children’s health and welfare.
For less than 50/50, a combination of certain weekends, weeknight visits and overnights can be arranged. It really depends on you and your children’s circumstances.
Can My Child Choose Which Parent He Or She Wants To Live With?
Section 3042 of the California Family Codes states that if a child is of sufficient age and capacity to state a preference for custody or visitation, the court shall give the child’s wishes due weight in granting or modifying custody or visitation. In other words, if the child appears to the court to be articulate and mature enough to express a preference, the court will consider the child’s preference when it makes the order.
If a child is 14 or older, they have the right to address the court regarding custody and visitation, unless the court determines it is not in the child’s best interest to do so. However this does not mean the court is required to grant the minor’s request even if the court allows the child to address it. Note that “addressing the court” when it comes to these issues usually means that the judge will speak to the child in private, rather than in open court.
That’s the basic law on this issue, but as you have probably observed, all kids are different. Some are mature for their age, some less so. Whether a child’s preference will be granted depends on numerous factors, but it will always come back to what the child’s best interests are.
What Is Mediation; Do I Really Have To Go?
Mediation consists of at least one mandatory session with a mediator where you and your spouse will try to work out a parenting plan for your kids. The mediator’s job is to work with both parties in order to come to arrangement that is in the best interest of the child; and that’s important to keep in mind. Mediation is not about either parent’s personal wants. It’s about what is best for the child.
One other thing that may be helpful to know is that the parenting plan you make (if an agreement is arrived at) is not necessarily static. That is, over time the plan can change as your circumstances evolve. This means that a good faith effort on the part of both parents is crucial to success.
Note that in cases where domestic abuse has occurred, it is quite possible that a mediator will meet with mom and dad separately. In some cases the abused spouse will be allowed to bring someone with them for support purposes.
Mediation is mandatory when custody is contested. Contested custody essentially means you have been unable to reach a custody and visitation agreement with your spouse on your own. So do not blow off your mediation date just because you are of the belief that it’s a waste of time. It will almost certainly hurt you in court when the judge finds out you didn’t bother to attend mediation. Typically, you’ll receive your mediation date at the same time you receive your court date, which should give you adequate advanced notice of the mediation date.
I encourage you to make a good faith effort when you go to mediation. It is not always easy to sit in a room with the other parent, but it is important to maintain a positive attitude and work with the mediator as best you can. Sometimes the observations of a neutral third party can provide a perspective you hadn’t considered before, so go in with an open mind and make the best of it.
Oftentimes parents will approach mediation as a useless chore where nothing will change. And it may very well be that an agreement will not be reached in mediation. Again, I encourage you to approach this particular process with an open mind and a good attitude.
Another important thing to remember is that you don’t want to agree to something you aren’t comfortable with. Never feel pressured to make an agreement for the sake of making an agreement. If you are unable to make an agreement in mediation, then a hearing date will be set and we will make our argument in court to a judge, or hopefully we can work out a mutually beneficial agreement before then.
Does Each Parent Have Equal Parenting Rights?
In short, yes. Regardless of gender (see Father’s Rights below), sexual preference, ethnicity, disability, or religion, you as a parent have the right to spend time with and raise your child (barring things like abuse or being a threat to the health and well being of the child).
This is also true with respect to financial status. It does happen sometimes that one parent is more financially well off than the other, but simply having less money should not cause the court to view the less wealthy parent in a prejudicial light. Keep in mind though, that if you cannot provide a home for your children, the court will have to consider that. However, once you are back on your feet, have established stability, and can provide for their needs again, you should be able to resume custody and visitation.
As A Father, Do I Have The Same Custody Rights As Their Mother?
Yes, you absolutely do. This may seem a bit repetitive given the section immediately above this one, but it is a question many dads have.
Generally, both parents start on a level playing field because the California Family Code espouses frequent and continuing contact between parents and children because that is what is in the child’s best interest. However, many people, both moms and dads alike are stuck in the past, believing that mothers are automatically the preferred parent in a child custody case. This can cause fathers who genuinely want to remain involved with their kids to feel like they should just cave-in to whatever mom wants. It doesn’t have to be that way.
Now, circumstances may be such that mom does get more time with the kids because that’s the way it’s been. This is what is known as “de facto” circumstances. For example, if you’ve been working 40+ hours per week while mom has been home raising the kids since they were born, the percentage of time you are awarded custody may weigh in mom’s favor. On the other hand, as long as you can provide a safe, clean home for the kids and meet their needs (like getting them to and from school), there is a good argument to be made that you deserve as much time with the kids as mom does.
Remember, your kids need you just as much as they need their mom, and they will be better off in life with you being a guiding, consistent presence in their lives. So do not think that your fatherhood should be discounted or that you are less important than your children's mother.
Abuse and Neglect
The courts take allegations of child abuse with the utmost seriousness. However, if your child is being abused, you want to take action as soon as you are humanly capable of it.
With respect to domestic abuse, California Family Code Section 3044 states:
Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, or against the child or the child’s siblings … there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child… This presumption may only be rebutted by a preponderance of the evidence.
This means that if the court finds that a parent has committed domestic violence in the past 5 years, they may very well find themselves in a situation where they either have limited, supervised visitation with their children, or they may not be able to see them at all.
California Family Code Section 3011 states that with respect to abuse, the court shall consider the health, safety, and welfare of the child, including a history of abuse by one parent or any other person seeking custody of the child. Among the other factors the court will consider include substance abuse. However, before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services Cal. Fam. Code § 3011(a)(B)(4).
Put more simply, there must be good evidence to support the allegations because the consequence to the accused parent and the children are so serious.
California Penal Code 270 states that neglect occurs, "If a parent of a minor child willfully omits, without lawful excuse, to furnish necessary food, clothing, and shelter or medical attendance, or other remedial care for his or her child..."
More plainly put, if a parent has the ability to take care of their child’s most basic needs, but willingly fails to do so, then they can be put in jail, fined, and of course, lose the right to see their child.
Note the use of the word “willfully” in PC 270 because it is important. Sometimes it is the case that a child is harmed when a parent severely lacks the resources to care for a child. This is not a crime if through no fault of their own they do not earn enough money to pay for necessities. Thus the use of the key word “willfully.” To briefly turn to the matter of child support, this is why it is so vital for you to pay child support if you are ordered to, or if you are entitled to receive it, to enforce the order. Otherwise, your child could be harmed.
False Allegations of Abuse and Neglect
It is not uncommon that someone would make these kinds of allegations with less than honorable merit. Divorce is usually very difficult, which means people are not always thinking as clearly as they should, and therefore will seek to gain leverage in child custody battles in order to get back at their spouse for either real or perceived wrongdoing during the marriage or relationship. And make no mistake about it, if a parent makes false allegations of abuse, they could suffer consequences including loss of time with the children and monetary sanctions. Further, there is a good argument to be made that these false allegations are in themselves abusive to the children because it very well could cause a child emotional harm and parental alienation.
As I mentioned out the outset, this is page is not meant to be an exhaustive compilation of all possible child custody and visitation issues. To attempt to do so would almost surely be overwhelming and therefore more frustrating and confusing than helpful. I wish I could have written something that would definitively answer your questions here, but that is simply not possible without knowing the facts of your case. So by all means, if you have questions and/or want to set up an appointment to discuss your matter, please contact us.
This page is for informational purposes only. It is not intended to be advice for your specific matter, and does not constitute the establishment of an attorney-client relationship.