When a marriage ends, emotions run high. But when children are involved, things can get even more chaotic. Child custody can be determined during the divorce proceedings or in a separate hearing after the divorce is finalized. Either way, it’s never an easy situation.
During the custody hearing a visitation schedule will be created, and child support will be ordered. Who has legal and physical custody of the child will also be determined. All of these decisions must be made while keeping the best interest of the children in mind. But the custody order also needs to work for both the parents. Don' go through this alone, it is important to have the right strong representation behind you, at San Diego Family Law Attorney we bring this and more to ensure the best results.
Best Interest of the Child
When the courts make decisions regarding child custody, visitation and child support, they first need to determine the best interests of the child. There are two guidelines the courts can use to determine this:
- The primary concern of the court system is the health, welfare and safety of the child
- Children benefit from consistent and frequent interaction with both parents
Judges have considerable discretion when it comes to “the best interests of the child,” and they typically use several factors to determine this including:
- The child’s age, maturity and wishes
- How stable the parents are including their employment and financial situation
- Whether or not a parent has a criminal history and what that history is
- The parent’s ability to care for the child physically and emotionally
The court system also gives consideration to the child’s preference of living arrangements. If the child is over the age of 12 and able to make and understand such a decision, a judge is much more likely to give the child’s request substantial consideration.
Co-parenting skills are also taken into account when determining the best custody situation. A judge will typically choose the parent who will try to encourage a positive relationship between the other parent and the child as well as encouraging frequent and consistent communication and visitation.
Consistency and stability is very important when it comes to the child’s best interests. For example, siblings will be kept together, except in rare circumstances, and routines and relationships with caregivers will typically be maintained. Other factors that are considered when determining the best interests of a child include:
- Any activities you or the other parent are involved in with the child such as after school sports or other extra-curricular activities
- How much time the other parent spends with their child as well as how much time you spend with them
- The existence of any negative behaviors such as arguments, threats, violence, profanity or abuse
- Both parents current work schedule, availability to the child and any travel schedules
If one parent travels frequently for work, visitation may be less frequent but longer in duration to compensate for lost time. In these cases, the courts encourage both parents to work together to come up with a flexible schedule that works for both the child and parents.
Child Custody Types
There are two main types of child custody: legal and physical. Legal custody is the right to make major decisions regarding the child’s upbringing and well-being such as choice of school, religious beliefs and medical issues. Physical custody refers to where and with whom the child will live after the divorce is finalized.
There are also joint and sole custody options. Joint custody means that both parents have partial custody with the children spending time with both parents. Sole custody (sometimes called primary custody) means only one parent has custody of the child, but the other parent has visitation rights.
Each custody type can be broken down into two categories:
- Legal Joint Custody – both parents make the decisions about how to raise the child including travel arrangements, health issues, religion, school and living arrangements.
- Physical Joint Custody – the child lives with both parents for a percentage of time (for example the child can live with the mother for 50 percent of the time and with the father for 50 percent of the time).
- Legal Sole Custody – one parent makes the decisions regarding the child’s upbringing including travel and living arrangements, religion, school, and health and medical issues without consulting with the other parent first.
- Physical Sole Custody – the child lives with one parent for the majority of the time, and the other parent has visitation rights. In some cases, these visitations must be supervised by a neutral party.
Most of the time, parents will have joint legal and physical custody of the children. However, there are exceptions. For example, if:
- One of the parents is unfit to care for the child
- The parents are unable to make any decisions together regarding the child’s upbringing
- One of the parents is unable to make decisions regarding the child’s well-being
- Sole custody awarded to one parent is in the best interest of the child
A custody hearing can become a battle very quickly, and one parent often feels they are the object of retribution, especially when their inadequacies and deficiencies are being aired in court like dirty laundry.
This process isn’t particularly palatable for either party, but is necessary to determine the best custody arrangement for the child and to prevent putting the child with a potentially abusive or neglectful parent. Because of this, it is imperative to have an experienced and knowledgeable attorney to help you fight for your child.
Child visitation is another area of divorce that can get quite emotional and heated. Often times the custodial parent may feel as if they have more power over the other parent and attempt to control the visitation schedule. The custodial parent may try to be malicious, using the child to exert a type of revenge on the ex-spouse.
However, parents are encouraged to work out their own visitation agreement when possible, determining the best times and duration of the visitation. This is called a reasonable visitation schedule. This type of schedule can be altered by the parents to work around their schedules. A good example is one parent who can’t pick up their child at their scheduled time because of an issue at work and instead offers to take the child another day. However, a permanent change in visitation schedule requires going through the courts system and proving that the new change is in the best interest of the child.
While reasonable visitation sounds good, in practice it can be difficult. The custodial parent is not obligated to agree to the requests of the other parent. If you know that your ex-spouse may become belligerent or inflexible after determining a reasonable visitation schedule, it’s a good idea to let the judge know this and ask for a fixed schedule instead.
Sometimes parents just can’t work together and agree on living or visitation arrangements and may require mediation. If an agreement cannot be reached because the parents cannot amicably work out an agreement, the court system will order a fixed visitation schedule.
With this type of visitation order, the court determines the times the non-custodial parent will visit with the child and the duration of those visits. A court can also impose a fixed visitation schedule if it is felt that the stability this type of schedule provides will benefit the child.
In some cases, the court may also determine where these visitations will take place and whether or not they will be supervised. This is often the case with a non-custodial parent who has shown a tendency for violence, or has previously abused the other parent or the child.
A parent who is an alcoholic or involved with drugs may also be ordered to have supervised visits. This supervision must be provided by an adult other than the custodial parent who will be present for the entire visit. This “supervisor” can be chosen by the parents if they can both agree on one individual or the court can appoint someone to supervise the visitations.
Visitation of Grandparents
In most custody cases, the rights of the grandparents are often forgotten, but all states have laws that affect the rights of both sets of grandparents.
For those grandparents who want to ensure their continued relationship with the child or children, it is possible to ask the court for visitation rights. However, the custodial parent has the right to limit or outright deny the grandparents visitation if they feel it would be detrimental to the child. If you are a grandparent that would like to ensure you have a continuing relationship with the child, it is best to seek the advice of an experienced attorney.
Modifying and Changing Custody Orders
Sometimes it is necessary to change a custody or visitation order. Life happens, and one parent may have to move because of a job change, or may be placed on a different shift at work and this may require a permanent alteration of the custody order.
If a parent wants to modify the custody order, and not just the visitation schedule, the parent must show a change of circumstances that requires the alteration. This change must affect the child’s welfare. A judge will determine if the change is necessary and in the best interest of the child.
Enforcing Visitation Orders
Sometimes the non-custodial parent will fail to exercise their visitation rights, causing the other parent to ask the court to modify the visitation order. However, this is often frowned upon by both the courts and attorneys because it is can adversely affect the child emotionally.
Depending on the child’s age, he or she may not understand why access to the other parent has been limited when visits are already infrequent. A better option is to attempt to get the other parent to come back into the child’s life and fulfill their role and obligations.
In some cases, the non-custodial parent will not cooperate at all with the order in which case the court system can impose fines and other “remedies” on them in an effort to get them to fulfill their parental duties. In the state of California, the court can:
- Charge the non-custodial parent a fine or civil penalty
- Require the posting of a bond to enforce compliance
- Award the custodial parent attorney’s fees
- Require the non-custodial parent to reimburse the custodial parent for any losses incurred because of the missed visitations
Sometimes the custodial parent will attempt to withhold visitation from the non-custodial parent, which can cause resentment from both the parent and the child. If the custodial parent occasionally withholds visitation or ignores the court ordered visitation schedule, the missed time should be rescheduled to a different time.
If the custodial parent withholds visitation from you and does not allow the time to be rescheduled, you do have options. As with the non-custodial parent who does not exercise their visitation rights, there are remedies the court can impose to ensure both parents adhere to the visitation order. If the custodial parent prevents visitation consistently, it is possible that a change of custody is issued effectively switching the child’s custody to the non-custodial parent.
If your co-parent is not allowing you to visit with your child, you may be tempted to withhold child support. However, this would violate the child custody order and place you in contempt which can lead to penalties including jail time and fines. It is best to contact an experienced attorney to find out what your options are while still paying your court ordered child support on time.
It is also not advisable to engage in “self-help” or kidnapping if visits with your child are withheld. Not only does this create hostility, it can also hurt the child emotionally. Calling the police to enforce a visitation order can be a bad idea as well since this can also incite hostility and can leave the child with less than happy memories of their visits with you.
The bottom line is child custody and visitation is an emotional and difficult time for both the parents and the child. These situations are extremely complex and require an attorney with knowledge of all aspects of child custody. If you or someone you know has a child custody case, working with a knowledgeable and experienced attorney can make this emotional situation much easier.
The Right Child Custody and Visitation Attorneys
At San Diego Family Law Attorney, our team has years of experience in child custody cases and our number one priority is the well-being of your child. Call us today at 619-610-7425 to speak to one of our experienced team members and take the first step to ensuring you and your child’s rights are protected.