CHILD CUSTODY AND VISITATION
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When a couple separates, or in the case of unmarried parents, the parties need to decide who will have “custody” of the
children and how each parent will be involved in their children’s care. In order to understand how custody and visitation
relate, you need to have an understanding of certain terminology:
A party with legal custody can make important decisions for the children (health care, education, and welfare). There are two types of legal custody:
Joint Custody: Both parents share the right and responsibility to make important decisions about the health,
education and welfare of the children.
Sole Custody: Only one parent has the responsibility to make the important decisions about the health, education and welfare of the children.
Some examples of the decisions or choices parents with legal custody can make are school, childcare, religious activities,
mental health needs, physical health needs (except in emergency situations), sports, summer camp, vacation, extracurricular activities, travel or where to live.
The children live with the party who has physical custody. There are two types of physical custody:
Joint Physical Custody: The children live with both parents.
Sole or Primary Custody: The children live with one parent most of the time and usually visit the other parent.
Types of Custody Arrangements:
The parties can have several different arrangements regarding legal and physical custody:
Joint Legal Custody: Both parents share the right and responsibility of making decisions relating to the children’s health, education and welfare.
Joint Physical Custody: Each parent will have significant periods of
physical custody arranged to assure the children have frequent, continuing contact with both parents.
Sole Physical Custody: The children will live with and be under the supervision of one parent. A parent with sole custody may have an
advantage when it comes to moving away over the objection of the other
parent. “Primary physical custody” is often used instead; it has a similar legal meaning but does not have the harsh implication that the child belongs to one parent.
Sole Legal Custody: One parent shall have the right and responsibility of making decisions relating to the
children’s health, education and welfare.
Joint Legal/Sole Physical Custody: Both parents share the right and responsibility of making decisions relating
to the children’s health, education and welfare; however, the children will live mainly live with, and be under the
supervision of only one parent, with visitation periods granted to the other parent.
Types of Visitation Arrangements:
Visitation is based on the amount of time each parent will have the children. There are four types of visitation:
Specified Visitation: When the parent who has the children for less than half of the time has visitation with the
children and has specific set times that visitation occurs.
Open Visitation: When the parent who has the children for less than half of the time has visitation with the
children but the schedule is open and flexible pursuant to the agreement of the parties.
Supervised Visitation: When the children's safety and well-being require that visits with the parent be
supervised by the other parent, another adult, or a professional agency. Supervised visitation is sometimes also
used in cases where a child and a parent need time to become more familiar with each other. This may be the case
if a parent hasn’t seen the child in a long time and they need to slowly get to know each other again.
No Visitation: This option is used in situations when visiting with the parent, even with supervision, would be
physically or emotionally harmful to the children. In these cases, it is not in the best interest of the child for the parent to have contact with the child.
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 that both parents agree on. If the parents can't agree, the
judge will make a decision at a court hearing. The judge will usually not make a decision about custody/visitation until after the parents have met with a mediator.
Obtaining a Custody/Visitation order:
Under California law, a judge must take into consideration what is in the best interest of the child when making a custody and/or visitation order, taking into consideration:
- the age of the child,
- the health of the child,
- the emotional ties between the parents and the child,
- the ability of the parents to care for the child,
- history of family violence and/or substance abuse,
- the child’s ties to school and home.
In today’s society, courts do not automatically give custody to the mother or the father, regardless of the age or sex of the
children. Also, the court cannot deny a parent’s right to custody or visitation merely because the parties were never
married, or because a parent has a physical disability, different lifestyle, religious belief or sexual orientation.
Modification of Custody / Visitation Order:
After a judge makes a custody/visitation order, one or both parents may
want to change the order. Usually, the judge will approve a new custody and visitation order that both parents agree to. If
the parties agree, the order can be modified without a formal hearing. A Stipulation and Order can be prepared and
submitted to the Judge for signature, and the new order becomes into effect once processed by the court.
If the parents cannot agree on a change, one parent can ask the court for a change. This is done through a motion
process that requires a court hearing and sometimes “mediation.” The parent seeking the modification will need to present
facts sufficient to the court to prove that there is a change in circumstances, potential harm to the children or other good
reason to change the order. Both parents will meet with an assigned mediator to talk about why the order should be changed prior to the scheduled hearing.
A People’s Choice can save you hundreds of dollars by preparing your family law documents instead of an expensive attorney!.