Child Custody

The issues of child custody and visitation can be one of the most difficult areas to work through in a divorce and oftentimes continue post-divorce until the children reach adulthood.

The overriding public policy with respect to custody/visitation is to assure that children have frequent and continuing contact with both parents (so long as both are fit to parent).

There are two types of custody:

1. Legal custody refers to a parent’s authority to participate in the major life decisions affecting a child’s health, education, and welfare. If parents share joint legal custody, both parents can participate in all of the major decisions regarding the child, and  each have equal access to all information about the children from schools, physicians, etc.
2. Physical custody refers to the time the children reside and/or spend time with each parent on a regular basis. Although some parents are able to effectively communicate and co-parent with the other, and the children are able to freely move from one parent to the other without a set schedule, most parents need a defined schedule clearly spelling out his/her custodial (parenting) time with the children.

There are a multitude of ways that parents can structure a custodial timeshare that works for them and the children. There is no right or wrong parenting schedule; the best plan is one that works for the parents and is in the best interest of the children.

Some examples of schedules include the following: The children may be with one parent one week and the other parent the following week; or the children may be with one parent during the week and with the other parent on alternating weekends with mid-week visits; or the children may be with one parent every Monday and Tuesday, with the other parent every Wednesday and Thursday and then they alternate weekends from Friday after school to the drop-off at school on Monday. Typically, holidays and special days are split equally and the parents may have designated vacation times every year. While some parents adhere to the same schedule during the summer months, others choose a different schedule with larger blocks of time when the children are with each parent.

The two types of custody can be joint or sole.

With sole legal custody, one parent has the exclusive right and responsibility to make all decisions relating to the children’s health, education, and welfare. It is the exceptional case wherein the Court awards sole legal custody. There are instances where the Court may award sole legal custody for specific parental decisions, such as medical care or schooling issues.  However, unless sole physical custody is granted as well, the sole legal custodial parent does not have sole control over the children’s residence and supervision.

With sole physical custody, the children reside with and are supervised by one parent, subject to the other’s visitation rights; however, the custodial parent does not have sole decision-making power (absent an order for sole legal custody) regarding other matters affecting the children.

California law favors joint legal and joint physical custody when both parties are able to agree.  Parents who are able to agree can develop their own individual parenting plan with respect to both legal and physical custody.

When custody is contested, the law requires that both parents participate in mediation with court mediators prior to a contested court hearing. If the parties are unable to come to an agreement during mediation, the Court decides on a parenting plan based on the child’s best interest. Sometimes, the Court will order an Evidence Code Section 730 Custody Evaluation (whereby the Court appoints a neutral mental health professional to comprehensively interview the parents, children, and other third parties and determine a custody arrangement based on the best interests of the children). The evaluator then renders a report with recommendations to the Court as to custody and/or custodial timeshare. The Court has the widest possible discretion in considering the recommendations of the custody evaluator and to fashion a custodial schedule taking into account the children’s best interest standard.

The law makes it clear that custody and visitation determinations are to be made from the standpoint of the child’s best interest. The wishes of the parents are only one factor to the extent that they affect the children’s best interest. In making such a determination, the Court can consider any relevant factors, including but not limited to the following:

1. The children’s health, safety, and welfare – these are paramount policy concerns. (Habitual drug and/or alcohol abuse are factors relating to a child’s health and safety);
2. Any history of physical and/or emotional abuse;
3. Continuity and stability of the environment. Public policy favors maintaining stability and continuity in a child’s environment, including but not limited to maintaining established patterns of care and emotional bonds with a primary caretaker;
4. Separation of siblings. Public policy affords strong protection to sibling relationships. Absent compelling circumstances, such as extraordinary emotional, medical, or educational needs, a Court will not likely order such a separation; and
5. Children’s preferences or wishes. With children aged 14 or older, the Court must consider his/her preferences unless the Court has good cause not to so consider. With children under the age of 14, the Court may consider his/her preferences if the Court determines it would be in his/her best interest to do so.

Child custody and visitation orders may be modified after the parents’ divorce is finalized. The Court retains jurisdiction over these issues until the children reach the age of majority. The parent moving to modify a final custody/visitation order must show that there has been a change of circumstances affecting the welfare of the children since the last order. Such changes of circumstances include, but are not limited to, the following: Change in residence of one parent (this may require a motion for a “move away order”); the desire of an older child to increase or decrease visitation with a parent; evidence of abuse of a child; or alteration of the children’s school schedule.

Divorce is difficult for children in the best of circumstances when parents are able to get along.  Studies and research indicate that if both parents are active and involved in the children’s lives, are able to communicate well, and do not fight over custodial issues, the children usually fare much better (both emotionally and physically) during childhood and continuing on into adulthood.

While some custody/visitation cases can be settled, others must be litigated in Court. Either way, PWGGC is here to assist clients with all custody and visitation issues. We draw upon our firm’s vast experience in negotiation and advocacy to develop creative solutions for you and your children.

If you face the challenges of a child custody dispute, contact Phillips Whisnant Gazin Gorczyca & Curtin, LLP to schedule an appointment with one of our child custody attorneys. Our family law professionals are dedicated to serving the best interests of you and your children.