“Child custody” refers to the rights and responsibilities of parents for taking care of their children. If you are going through a divorce or break up with children, you will need a child custody and visitation schedule. To be legally enforceable, the custody and visitation schedule must be signed by the judge.
There are two ways to get a child custody and visitation order signed by the judge: (1) the parents can reach an agreement and submit it to the court without a hearing (which will almost always be approved and signed by the judge); or (2) in absence of an agreement, the parties must litigate the issue in court and let the judge make the final decision.
If your child custody matter is contested, you need an experienced family law attorney to persuasively litigate your position in court. The attorneys of MacKay & Martin, LLP, are highly effective litigators who will accomplish that objective. But even if you and the other parent agree on every detail of your custody arrangement, you will need an attorney to navigate the legal process and draft an effective agreement that protects your current and future interests. Our legal experts will prepare a legally binding, detailed agreement that protects your interests while solidifying the terms of your agreement.
Factors Considered in Determining Child Custody and Visitation
Judges evaluating child custody and visitation cases in California must consider the best interests of the child when determining custody. In determining children’s best interests, California law specifies a few guidelines:
- Promoting the health, safety, and welfare of the child must be the court’s primary concern.
- The perpetration of child abuse or domestic violence within a child’s household is detrimental to the child’s interests.
- Children benefit from frequent and continuous contact with both parents, and ensuring such contact is usually in a child’s best interests (unless frequent contact with one or both parents would risk the child’s health, safety, or welfare).
In determining the best interests of the child, the court may consider any other facts and circumstance relevant to the case.
Types of Child Custody Orders
There are two types of child custody: legal custody and physical custody. Legal custody refers to a parent’s right to make important decisions regarding a child’s health, safety, and welfare. Physical custody refers to who the child lives with. Both types of custody can be shared by the parents jointly (joint custody), or granted to one parent individually (sole custody). Moreover, the court may order any combination of joint custody and sole custody (for instance, joint legal custody with sole physical custody to one parent, or vice versa).
In California, legal custody orders give one or both parents the right to make decisions regarding:
- Enrollment in or leaving a particular private or public school or daycare center
- Beginning or ending of psychiatric, psychological, or other mental health counseling or therapy
- Participation in extracurricular activities
- Selection of a doctor, dentist, or another health professional (a parent does not need to have legal custody to take action in emergency situations)
- Participation in particular religious activities or institutions
- Travel outside the state of California
A parent with sole legal custody has the sole authority to make these decisions. Parents with joint legal custody both have the right to make such decisions, but the court may order (or the parties may agree) that the parents obtain the other’s consent before making certain decisions.
Physical custody refers to who the child lives with. Physical custody can be joint, sole, or primary. Joint physical custody means the child lives with both parents. However, joint physical custody does not necessarily mean that the child spends equal time with both parents. When one parent has physical custody more than half of the time, that parent is sometimes considered to have “primary physical custody” or to be the “primary custodial parent.” A parent with sole physical custody has custody most of the time, and visitation is given to the noncustodial parent.
A parent who has physical custody of the child less than half the time has “visitation.” Visitation orders will vary depending on the best interests of the children and other circumstances. In general, visitation can be ordered as follows:
- Visitation according to schedule: in most cases, it benefits the children and parents to have a detailed visitation schedule to prevent conflicts and confusion. A visitation schedule will set forth the dates and times the children will spend with each parent and may include other orders relevant to visitation such as transportation to and from visits, holiday and vacation schedules, or orders against making disparaging comments about the other parent in the presence of the children.
- Reasonable visitation: reasonable visitation orders are generally open-ended and do not include a set schedule. Reasonable visitation orders should only be used in cases where the parents get along and are flexible with their parenting time.
- Supervised visitation: the court may order supervised visitation in cases where the health, safety, and welfare of the child requires that a parent be monitored, or in cases where the parent and child were separated and now need time to form a relationship before spending time alone. The court may order that supervised visits be monitored by a professional or by a responsible friend or family member with no history of child abuse.
- No Visitation: this option is used when visitation would be physically or emotionally harmful to the child. Since serious allegations of child abuse are generally handled in other courts, “no visitation” orders in family court are usually put in place temporarily while an investigation is pending, or ordered in cases where an absentee parent shows no interest in establishing or maintaining a relationship with the child.
The Child’s Wishes
The California Family Code states that children over 14 years old, or children under 14 with sufficient capacity to form an intelligent preference as to child custody and visitation, shall be permitted to testify regarding his or her preference unless the court determines that it would not be in the child’s best interest to testify.
In practice, the court tends to lean towards finding that it would not be in a child’s best interest to testify regarding his or her preference for one parent over the other. And because most family law judges are hesitant, if not admittedly averse to calling minor children to testify in court, a parent risks losing credibility by making such a request.
With that said, each matter presents its own unique set of circumstances, and your case might benefit from offering your child’s testimony. The family law attorneys of MacKay and Martin, LLP can assess whether testifying would benefit or harm your child’s welfare, and persuasively argue your position court.
For Your Sake and the Sake of Your Child, Contact MacKay & Martin, LLP
Divorce is a life-changing event for you and your children. Instead of being overwhelmed by anxiety, put your matter in trusted hands and let our experienced legal team achieve your goals and recover your sense of control.