Custody & Visitation

Parents that separate will need to have a plan for deciding how they will share and divide their parenting responsibilities. This plan can be called a parenting plan, a time-share plan, or an agreement regarding child custody and visitation.

In California, either parent can have custody, or the parents can share custody. The judge makes the final decision about custody and visitation but usually will approve the arrangement both parents agree on.

If the parents can’t agree, the judge will make a decision at a court hearing. The judge will not make a decision about custody/visitation until after the parents have met with a mediator from Family Court Services.

The law says that judges must give custody according to what is in the best interest of the child. Judges look at the children’s health, safety and welfare to decide whether to give custody to one or both parents. Courts also consider any history of abuse by one or both of the parents.

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Who decides who gets custody of the children?

If the parties cannot agree among themselves, then a judge will decide what the custodial arrangement of the children will be. The judge makes this decision based on information that is provided by the parties, and sometimes from other third parties, like medical professionals, teachers, relatives.

What is physical custody?

Physical custody refers to the physical direction and control of the child by the parent. Physical custody can either be “joint” or “sole”. There is a presumption that joint custody is in the best interest of the minor child.

The children’s best interests are the determinative factor in this question. The children’s best interest are determined by looking at the following factors, in addition to any other factors the court finds relevant:

  • Health, safety and welfare of the children
  • Any history of abuse
  • Nature/amount of contact with both parents
  • Habitual/continual use of a controlled substance or abuse of alcohol
What is the difference between visitation and custody?

All child custody/visitation issues are referred to mediation prior to any court determination of custody, excluding emergency ex apart orders. During mediation a neutral mediator will attempt to encourage an agreement between the parties that serves the best interests of the children.

Normally, “custody” refers to the legal or physical control of the child. Physical custody can either be “joint” or “sole”. Joint physical custody means that each parent has frequent and continuing contact with the children. Sole physical custody means that the child lives with one parent, while the other parent has visitation rights. Visitation is the time that the noncustodial parent has with the child as specified in the court’s order.

What is legal custody?

Legal custody refers to the right of the parents to participate in decisions regarding the health, education and welfare of the child.

If a parent is awarded “sole legal custody”, then that parent alone makes the above decisions on behalf of the child without the consent of the other parent.

If the parents are awarded “joint legal custody”, then each parent possesses the rights above.

What if I suspect that my spouse is going to move or take the children out of state?

Once a divorce or legal separation action is initiated there are standard temporary restraining orders that apply to the parties which prevent either parent from removing a child from the state without written consent of the other parent or prior court order.

If more specific custody and visitation orders are necessary, a motion for temporary orders can be filed asking the judge to grant you the relief requested.

If you believe that there is an imminent danger that the children will be moved from California, you can file a twenty four hour noticed hearing (called “ex parte”) asking to get immediate relief enjoining the other parent from moving with the children.

Can I move with the children to another county or another state?

A parent entitled to custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.

The court will look at a variety of factors to determine if the parent can move, including if the issue is an initial custody determination, whether the parties share joint custody, as well as the impact of the move on the child. In a matter involving immediate or eventual relocation by one or both parents, the trial court must take into account the presumptive right of a custodial parent to change the residence of the minor children, so long as the removal would not be prejudicial to their rights or welfare.

Most move-away cases are inherently fact-dependent and must be judged on a case-by-case basis.

Do the children testify in court?

Court’s are very protective of children. 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. Very rarely will the child testify in open court.

What is mediation?

Parents must attend mediation prior to a court hearing in which child custody is an issue. Mediation is a form of negotiation between the parents with the help of a professional mediator.

Each county has a different mediation process. The mediation is normally free of charge when using the court’s mediators. If the parties use a private mediator, then one or both parents may have to pay for the mediation.

The mediator interviews both parents, and depending upon the circumstances, the children. All communications made to the mediator by the parties is confidential. The judges do not know what is discussed in mediation. Only in rare cases of allegations of molestations or imminent danger are the contents revealed.

Orange County

Orange County uses Superior Court Mediators. They do not make recommendations to the Court on parenting plans.

However, where there are allegations of concern for the welfare of the child, the mediator may recommend a psychological evaluation, a child custody investigation, a domestic relations investigation, an attorney conference, or that an attorney be appointed to represent the best interests of the child.

Los Angeles County

Los Angeles County has a mediation program known as Parents and Children Together, or “PACT”. Parents must attend the orientation and parent education program prior to attending mediation.

If the parents are unable to agree on a parenting plan, the Family Court Services Child Custody Evaluations Office may be ordered to provide the court information and recommendations. There may be a fee for the evaluation.

Do the children attend mediation?

Whether the children meet with the mediator depends upon a number of factors. Some counties have a policy that the first mediation session only involves the parents, and that the mediator could request that the parents bring the children to a subsequent mediation. Other counties have a policy that the children should be brought to the first mediation, and depending upon the age and emotional maturity of the children, the mediator will then meet with them.

Do the grandparents have visitation right?

California has a statute that allows grandparents to request that the court give the grandparents access to the children. Often times, the grandparents seeking access are the parents of a noncustodial parent who has no visitation rights. Access questions are highly fact dependent, and while it is not impossible for the grandparents to gain access, there are significant hurdles for the grandparents to overcome.

What rights do step-parents have in custody proceedings?

Where a step-parent requests visitation, each natural or adoptive parent, and the step-parent, will have the opportunity to be heard by a judge on the issue of visitation.

My ex-spouse and I share joint legal and physical custody. I want our child to attend counseling. Can one parent stop the other parent from sending the child to counseling?

Family Code ยง3083 states that “[i]n making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child…”

It is important to specify in your stipulation or in the court order that health care decisions require mutual consent, otherwise, either parent has the right to seek health care for the child as they deem fit. If the parties ultimately cannot agree, then it would be up to the court to determine if the child receives the desired health care, and by which provider.

The court uses a sophisticated software program to calculate child support. Generally, most child support awards are based on guidelines that the judge follows. It is primarily based on the income of the parents, the number of children, and the percentage custodial time that each parent has with the children.