Upon filing for divorce or legal separation in California, parents must decide the legal and physical custody of their children. Custody arrangements can be complicated. Parents often seek the services of a trained mediator to help them reach an agreement outside of court. At San Diego Esquire, we provide child custody mediation, document preparation, and legal representation services. Contact us to find out more about the services we provide. Our trained mediator can help you reach an agreement with your spouse and draft a parenting plan. Once you have an agreement in place, we can draft a custody stipulation and file it with the court on your behalf. If you need legal representation, and are not interested in mediation, we can represent you in obtaining a child custody order. Read on to learn more about child custody in California and how we can help you.
Child Custody Overview
Child custody and visitation are legal terms used to describe the legal relationship between a parent and his/her children. This entails the right of parents to make decisions regarding the safety, health, and well being of their children. Visitation refers to how parents will spend time with their children. In California, parents can have joint custody of their children. If the parents cannot reach an agreement on custody, the court will make a final determination. The court will not make a decision regarding custody until after both parents have met with a mediator to resolve any underlying issues. There are two types of custody: legal and physical custody. Below is an overview on each one.
Legal Child Custody
Legal custody refers to how the parents will make decisions as to their children’s health care, education, welfare, and religious practices. Parents can share joint legal custody of their children. A parent can also be awarded sole legal custody of his/her children.
Physical Child Custody & Visitation
Physical custody refers to which parent the children will primarily reside with most of the time. Joint physical custody allows the children to live with both parents. Sole or primary physical custody means the children live with one parent most of the time and visits the other parent. The parent who the children spend most of their time with are referred to as the “primary custodial parent.” The other parent has visitation rights with his/her children.
Visitation, also known to as “time share,” refers to how much time a child spends with the non-custodial parent. The parent who has the children less than half the amount of time as the other parent has visitation rights. Visitation orders vary and depend on what is in the best interests of the children. Visitation includes one of the following:
- Scheduled visitation. It is best practices for parents to have a planned visitation schedule. This helps prevent conflicts and confusion as to how the children will spend time. The visitation schedule should detail the time and dates that children should be with each parent. This includes holidays, special occasions, and vacations.
- Reasonable visitation. Reasonable visitation orders are open-ended. Reasonable visitation allows both parents to be flexible to spend time with their children. This type of visitation is best for parents who have a healthy relationship (no conflicts).
- Supervised visitation. Supervised visitation requires visits with a parent to be supervised by another adult or professional agency. This type of visitation is established when the children’s safety and well-being are at issue. It also allows a parent and child to become more familiarized with each other.
- No visitation. A visitation order may not be granted in the event a parent is physically or emotionally harmful towards his/her children. It is not in the children’s best interest to be in the parent’s presence.
How Custody is Determined
The court uses the following factors to determine what is in the best interest of the children in awarding custody in San Diego:
- The age of the children
- The children’s desires (teenagers)
- The emotional ties between the parents and the children
- The ability of the parents to care for their children
- Any history of substance abuse and violence by either parent
- The child’s involvement and ties to school, home, and the community
Despite popular belief, mothers are not always awarded sole legal and physical custody of their children. Fathers have parental (custodial) rights as well. The court cannot deny a mother or father right to custody without sufficient legal cause. The court will make a child support order based on the custody order. The amount of time each parent spends with his/her child affects the amount of child support.
How to Get a Child Custody Order
As mentioned above, parents can agree to child custody and execute an agreement to file with the court to become a court order. If a couple cannot reach an agreement, the judge will order both parents to attend mediation (ex – Family Court Services or a private mediation company such as San Diego Esquire). If the parties are still unable to reach an agreement, the custody issue will proceed to a hearing. The judge will then decide the custody and visitation schedule.
Child Custody Modification
Child custody orders are modifiable. The court will approve a modified child custody order if both parents agree to the changes or there is a substantial change in circumstances in which a modification is warranted such as a substantial change in a parent’s work schedule.
Contact San Diego Esquire
Contact San Diego Esquire for more information on how to obtain a child custody order. We can review your case and provide you with legal advice and guidance on how to best proceed in obtaining an order.