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Child Custody

In California, child custody refers to the rights and responsibilities of parents as far as taking care of their children is concerned. The child custody process is the most emotionally stressful phase of family law cases, especially given the fact that you can never get back time lost with your children. Custody deals with who is responsible for making major decisions for a child as well as where the child lives. During the process, the judge will make a decision determining visitation rights for the parent who does not have custody of the child. While the law likes to see both parents play an important role in their children’s development, sometimes that’s not possible.

California law allows for one parent to be awarded sole custody of a child or for both parents to share custody. Either way, the arrangement is made depending on what is in the best interests of the child. If parents can still not agree on anything after their failed marriage, the matter will be taken to court and the judge will set the terms of the custody and visitation.

Types of Child Custody in California

When a parenting matter has to be decided, there are two areas of child custody that the courts look at; legal custody and physical custody.

Legal Custody

This type of custody determines which parent will get to make major decisions about the wellbeing of the child. Legal custody can either be sole or joint. This means that either one or both parents can be awarded legal custody of the child. The parent or parents will make decisions regarding the child’s

  • education including child care and schooling
  • religious activities and religious institutions
  • physical health
  • psychological, psychiatric, and other mental health, therapy or counseling needs
  • Sports, summer camp, vacation, or extracurricular activities
  • Residence (where the child will live)
  • Travel
  • Health care (including the choice of dentist, doctor, orthodontist or other health professionals)

When joint legal custody is awarded, both parents share the rights and responsibilities to decide on the factors listed above. However, this does not mean that the parents have to agree on all decisions. There will be times when one parent makes a decision for the child on his/her own. But even with that, some problems may arise and is, therefore, best if the parents can communicate before making any major decisions. On the other hand, when a judge awards sole custody, only one parent will be responsible for making important decisions for the child.

Physical Custody

Physical custody can also be either sole or joint. Joint physical custody means that both parents have the responsibility of providing shelter for their children. However, this doesn’t necessarily mean that the children will split their time equally between both parents’ homes. This, therefore, implies that the children will spend slightly more time with one parent than the other. In this case, the parent who spends more time with the child is referred to as the primary custodial parent.

If one parent is awarded sole custody, he or she is known as the custodial parent. The other parent, on the other hand, is referred to as the noncustodial parent. The custodial parent will live with the child but the noncustodial parent may be given visitation rights. This means that the child will still spend time with both parents even though he or she lives with one parent.

It is possible for the judge to award sole physical custody and joint legal custody for one case. In such a scenario, the child will live with only one parent but both parents will have the right to make decisions regarding the child’s welfare, education, and healthcare. It’s likely that the parent who’s not allowed to live with the parent will have visitation rights to spend time with the child.

Types of Visitation Orders

Visitation orders can vary from one case to the other depending on the best interests of the child, the situations of the parents and other factors that directly affect the well-being of the child. Child custody can either be joint or sole. When sole custody is awarded, it does not mean that the child cannot spend time with the noncustodial parent. In some cases, sole custody may be awarded because of the long distance between the parents’ homes.

Either way, when one parent has sole custody of the child, the other parent usually has the right to visitation. In California, there are four main types of visitation:

  • Scheduled visitation orders

Scheduled visitation orders are awarded when the parents are very disorganized, busy, have bad communication with each other, or are not on good terms. As the name implies, these types of orders take account of detailed terms like the location, dates, and times of the visitation. Other things that can be included in a visitation schedule include special occasions, holidays, vacations, and birthdays.

  • Reasonable visitation orders

Compared to scheduled visitation orders, reasonable visitation orders are less detailed and do not cover factors such as location, date and time of visitation. This gives parents more flexibility in working out a schedule that works for both of them. This type of order is only applicable if the parents are on good terms, can be flexible with one another, and have good communication skills. However, misunderstandings and disagreements can negatively affect the family and this means that the parents have to go back to court.

  • Supervised visitation

Sometimes it may not be safe for the child to spend time alone with the noncustodial parent. If there’s risk of abduction or if the child’s well-being and safety are at risk, the court may issue visitation that must be supervised by the custodial, parent, a professional agency, or just another adult. Some of the reasons for supervised visitation include:

  • The noncustodial parent has a history of or faces allegations of substance abuse, child abuse, child neglect, or domestic violence
  • The noncustodial parent has a mental illness
  • The noncustodial parent has been absent for a long period of time
  • The noncustodial parent is trying to prove that he/she is worthy of custody of the child
  • The custodial parent has reasonable belief that the child may be abducted by the noncustodial parent

When supervised visitation is awarded, details of the location, time and length of the visits will be provided by the court. In some instances, the order will also cover the name of the supervisor.

  • No visitation

If the court finds out that visitation with the noncustodial parent would likely harm the child physically, emotionally, or mentally, no visitation would be awarded. This means that it is in the best interests of the child not to spend time with the noncustodial parent.

The Best Interests of the Child

When deciding on the best course of action on matters regarding child custody and visitation rights, the courts must determine what is in the “best interests of the child.” Under CA Fam Code § 3011, the court must consider several different factors in deciding where the children will spend most of their time, and these include:

  • The age of the child
  • The child’s health and safety
  • The frequency of contact and emotional connection between the child and the parents
  • Each parent’s ability to care for the child (employment or financial status)
  • History of abuse, violence, and neglect by either parent
  • Parental criminal history
  • Use of prescription drugs, alcohol, and controlled substances
  • The child’s ties to his or her home, school, and community

Child custody is not awarded based on gender or the sex of either parent or of the child regardless of the child’s age. Also, a parent cannot be denied custody and visitation because of differing religions, lifestyles, sexual orientations, disability, or because the parents were never married. If a parent does not agree with the court’s decision, he or she must follow it either way. However, a parent can apply to modify the order if he or she believes that the terms of the order are not in the best interests of the child.

If the court believes that awarding custody to either parent is not in the best interests of the child, custody can be awarded to another person. This is referred to as guardianship and usually remains in effect until the one parent or both parents are fit to retain custody of the child.

California’s Legal Process of Obtaining Custody and Visitation Order

If you have either a legal separation, divorce, or annulment case open in a California court, you can request a custody and visitation order. However, before a case is taken to court, parents have the option of creating their own custody order. Once an agreement is reached, the order will be submitted to the judge who will sign it into an order that is legally enforceable. If the parents cannot agree on their own, they will have to go through a child custody mediation. If they can’t agree and that option fails, they will have to go in front of a judge. At this juncture, the judge may appoint a lawyer to represent the child or a child custody evaluator to create a plan.

If your case goes to court, you’ll need to fill out a Request for Order as well as a Child Custody and Visitation Attachment that will include the details of your request. If you have a proposed custody and visitation plan that you created on your own, with your attorney, or with the other parent, those forms should be attached as well. Taking shortcuts in matters concerning your children will not be in their best interests and it’s therefore imperative to work with an attorney who will help you compile the forms.

The original copies will remain at the court and you’ll be required to have two copies, one for you and one for the other parent. The court clerk will give you a court date, and the deadline for serving the other parent.  Serving must be done by another person who is over 18 years old. Once the other parent has been served he or she must file a Proof of Service. Once the hearing has been completed, the judge will sign the court order, and you’ll have an order that can be legally enforced or modified. Make sure you consult with your attorney regarding whose responsibility it is to have the judge sign the order. It can either be you, the court clerk, or your attorney.

How to Modify a Custody and Visitation Order

As parents’ lives change or as a child grows older, the terms of the custody and visitation may no longer be in the best interests of the child. There are various reasons that may prompt a change or modification in the custody or visitation order. If the parents get to agree on the changes, they can create an agreement and submit it to the judge who will sign it into a new child custody order. In most cases, parents interested in changing custody and visitation order will have to go through child custody mediation. However, if they can’t reach an agreement, one parent will file a case with the court requesting a modification of the order. The parent requesting the change must provide details concerning the changes that have taken place that make the current order not to be in the best interests of the child. Important to note, a modification or change will only be made if it is in the best interests of the child because the courts aim at ensuring that the child has a stable and consistent life.

To enforce the custody and visitation order, always carry a copy of the orders in a safe place, make sure that the order is as detailed as possible, and always carry an updated copy if you and the other child’s parent make modifications. If the other parent does not follow the terms indicated in the order, contact your local enforcement, county’s district attorney, or file for contempt of a court order.

San Diego Child Custody Attorney

If you have a child custody or visitation issue, the best thing you can do is contacting an experienced family law attorney. You can rely on the experience of San Diego Family Attorney in obtaining child custody judgments that are in the best interests of the child. We fight hard to help you provide your child with the best life possible. We can handle cases from their first stage, review an already existing case and help in modifying an existing custody and visitation order. To get an initial free consultation, contact us today at 619-610-7425.


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