Child Custody and Visitation

Overview

Whether you are trying to establish your initial custody and visitation orders or trying to modify the current timeshare arrangement, this is one of the most personal and stressful issues facing parents. We can assist you with filing your paperwork, prepping you for mediation, and/or advocating on your behalf in the courtroom. It is understandably difficult to express your wants and desires for your children, and the ability to present your thoughts in a clear, concise manner is priceless. In California, custody and visitation arrangements are based on the best interests of the children, and we can help you accomplish that goal.

There are two types of custody, legal and physical. Legal custody is essentially the right to make decisions pertaining to the health, education, and religious education of your children, among other such matters. Physical custody is the right to physically have the children in your care. In all cases, there is either joint or sole custody, although there are occasions where one parent will be designated the “primary custodial parent,” meaning that the children primarily reside with that parent.

Visitation is the actual schedule where the children spend a specific amount of time at each parent’s residence, and it is used for purposes of calculating support. Regardless of whether or not you wish to have an equal timeshare or with one parent to have limited visitation rights, it is very important to establish a set schedule that both you and your children can rely on.

Common custody and visitation issues include:

  • Move-aways: The reality is that people need or want to move for various reasons, and typically speaking, this impacts the visitation schedule. There are creative and flexible solutions for this problem that allow for both parents to continue enjoying a similar timeshare. The goal in move-aways is to allow your children to maintain the same relationship with both parents. This can frequently be accomplished by carefully looking at your specific situation and keeping your children’s best interests in mind.
  • Military: Active military personnel generally do not have a choice when they are deployed or reassigned. Custody and visitation orders in these situations can be quite different based on the children’s needs.
  • Modifications: Change is a part of life, and with that includes changes in your children’s needs and wants. While one parent may be reluctant to alter a schedule that has been in effect for many years, sometimes this is required based on your children’s development. Other times, both parents acknowledge and agree that the current schedule is no longer working. Either way, the goal should be to create a schedule that reflects what is best for your children.
  • Initial orders: Suddenly you are forced to think of schedules and dividing up holidays. Learning this new thought process can be terribly difficult and stressful.

No matter what your specific custody or visitation issue is, you can always benefit from the assistance of an attorney who is experienced in these matters and who can guide you through this overwhelming process.

We invite you to contact our firm to discuss your issues so we can work together to accomplish your goal of reaching a custody and visitation arrangement in your children’s best interests.

Adoptions of minors typically fall into three categories: step-parent adoption, relative adoption and non-relative adoption.

Step-parent adoptions are the most common type of adoptions and they occur when a new spouse adopts the minor child(ren) of the other spouse. When completed with the consent of both biological parents, the procedure is more expeditious and may not require a litigated hearing. If one biological parent does not consent, then a litigated hearing is typically needed.

A relative of the child(ren) who petitions to adopt the child(ren) are classified as “relative adoptions.” These typically occur where both biological parents are deceased. Relative adoptions undergo scrutiny and examination as do the step-parent and non-relative adoptions and the Court can approve or deny any application and petition for a relative independent adoption.

Non-relative adoptions of minors happen when the adoption is by a person other than a blood relative and typically follow a previously established guardianship. An example of such would be when a step-parent petitions the Court to adopt his or her step-child(ren) after the biological parent passes away.

If you would like guidance through this process, please contact our office to set up a consultation.

FAQ

Q: How do I get custody and visitation orders?

A: Custody and visitation orders are established either by a full agreement written up between the parties, or else by filing a motion with the Court and asking the Court to make orders. If you and the other parent are unable to reach an agreement out of Court, you will be required to attend mediation. Mediation is a process intended to help the two of you reach an agreement on custody and visitation, and worst case scenario, provide the Court with recommendations on what the Judge should order regarding custody and visitation.

Q: I don’t agree with the Mediator’s recommendations. What now?

A: You will have a chance to argue your case in front of the Judge before he or she makes orders regarding custody and visitation. Although the Mediator’s recommendations are persuasive, Judges don’t automatically adopt them. If there is time, you might want to speak with your attorney about drafting a formal declaration responding to the Mediator’s recommendations, conferring with the other side, and/or discussing the best strategy to present your proposed schedule to the Court.

Q: My husband said that if I divorce him, he will disappear with our child, what can I do?

A: As unintuitive as it may seem, filing AND serving your husband with divorce papers offers you more protection than waiting to see if your spouse follows through with his threat to take your child. Until you file, the law assumes that the two of you are married and have equal rights to your child, and law enforcement will not interfere with marital disputes unless there is domestic violence. Once there is an active divorce case pending, the law recognizes that you are separated and that there very well may be a custody dispute. After filing for divorce, you can also request emergency custody orders based on your husband’s threats. It is very important that you seek legal representation if your spouse is threatening to kidnap your child as soon as possible.

Q: My spouse told me that courts always side with mom when it comes to the children and that if I divorce her, I will lose our kids, is that true?

A: Definitely not true, please read our blog on common divorce myths at familylawyerblog.org

Q: I heard that if we fight over custody or visitation of our children, we will have to go to mediation. What is that?

A: Mediation, which has now been renamed to “Child Custody Recommending Services,” is required if there is a custody or visitation dispute between parents. This process is intended to be positive and of benefit to parents. Rather than relying on a judge to make a decision regarding your children, the mediation process tries to empower parents to determine what is best for their children.

Q: I have heard that there are different kinds of child custody. What are they?

A: There are two types of custody, legal and physical. Legal custody relates to which parent has the right to make decisions about issues such as education, school, and medical care.

Physical custody determines which parent has the right to physically have the children with him or her, absent the other parent’s right of visitation.

Custody awards are usually expressed in terms of joint and sole. Joint custody means that both parents share in the rights associated with the particular form of custody, sole custody means one parent has the rights.

Q: If I have a criminal conviction, can I still get custody of our children?

A: It is possible to still share custody of your children with the other parent even if you have a criminal background, but if you have been convicted of domestic violence or are a registered sex offender, it will be much more difficult to share custody.

Statutes

3011. In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:

  • (a) The health, safety, and welfare of the child.
  • (b) Any history of abuse by one parent or any other person seeking custody against any of the following:
    • (1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
    • (2) The other parent.
    • (3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.

    As a prerequisite to the consideration of allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this subdivision, “abuse against a child” means “child abuse” as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means “abuse” as defined in Section 6203 of this code.

  • (c) The nature and amount of contact with both parents, except as provided in Section 3046.
  • (d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. 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. As used in this subdivision, “controlled substances” has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.
  • (e)
    • (1) Where allegations about a parent pursuant to subdivision (b) or (d) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (b) of Section 6323.
    • (2) The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.

3020.

  • (a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.
  • (b) The Legislature finds and declares that it is the public policy of this state 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 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, as provided in Section 3011.

3040.

  • (a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020: (1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parent’s sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. (3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
  • (b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

3042.

  • (a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.

3044.

  • (a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, 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, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.