In California, each custody case is decided according to the best interests of the children, so custody and visitation orders can vary significantly from case to case.
Legal Custody v. Physical Custody
There are two types of custody: legal custody and physical custody. Legal custody gives a parent the authority to make decisions relating to the health, education, and welfare of the children. Physical custody gives a parent the authority to have the children in their physical care. In most cases, the Court will award the parents joint legal and physical custody of the children, meaning that the parents must share in decisionmaking and both have significant contact with the children.
Physical Custody and Parenting Plans
Whether parents share joint physical custody of their children or one parent is the primary parent with sole physical custody depends on the parenting plan, which dictates how often the children are in each parent’s physical custody. Although California public policy favors frequent and continuing contact between parents and their children, there are some situations where joint physical custody is not possible (i.e. the parents do not live near each other) or is not in the best interest of the child due to a health or safety concern. In those cases, judges may award one parent primary or sole physical custody and grant the other party (the non-custodial parent) visitation in a court order. A visitation order (i.e. parenting plan) specifies a parent’s right to spend time with their children.
When separating parents have children together, they will need a parenting plan to set forth the visitation schedule and dictate when the children will be with each parent. However, a parenting plan can be as rigid or as flexible as a family needs. In many instances it is helpful to have a set schedule to allow for consistency for the children and to reduce conflict and uncertainty. This clarity can also reduce future litigation because parents have defined guidelines for their visits and a court can more easily determine if one parent is ignoring the court order.
A parenting plan typically includes a schedule for holidays and provisions for scheduling vacations during the summer. The plan can also address communications between the parties, communications between the children and non-custodial parent, what information needs to be exchanged prior to any travel, and any other matters regarding the children that the parents would like to include.
Court Intervention in a Parenting Plan
Parents are encouraged to work together to establish a parenting plan as it allows for the greatest flexibility. If parents are unable to agree on a parenting plan, then one parent will typically file a motion with the court requesting custody and/or visitation orders.
In California, if a parent is seeking to obtain or modify a custody or visitation order, the court is required to set the matter for mediation and the parents will meet with a mental health professional to attempt to resolve the contested custody and visitation issues. Whether the mediator issues recommendations to the court varies from county to county, however both the mental health professional and the court will assess issues based upon the best interest of the children.
Although the court favors both parents having equal time with the children to allow for frequent and continous contact, in some instances this is not feasible (i.e. distance) or would not be in the best interest of the children due to safety concerns. In some instances where there are concerns regarding the child’s safety when in the care of one parent, the court may order that parent’s visitation to be supervised or terminated.
During supervised visitation, the non-custodial parent can only spend time with their children while under another party’s supervision. Depending on the order, the supervisor may be the custodial parent, a social worker or other professional, or a trusted family member. This person is there to ensure the non-custodial parent behaves and does not put the child at risk while they are together.
In some circumstances, the court may be so concerned about the safety of the children that they bar a parent from having any contact with the children. This most often occurs when there is documented evidence of domestic violence. In this case, the custodial parent typically receive sole custody, and the other parent is not granted visitation.
Discuss Custody and Visitation With Skilled California Family Law Attorneys
There are many factors to consider during a custody matter. Whether you are pursuing joint custody, requesting sole custody, or seeking visitation, it is important that you work with a skilled attorney to navigate your case effictively and efficiently. At Flicker, Kruger, Kerin & Bissada LLP, our experienced attorneys are dedicated to providing you with personalized legal counsel for your family law case. We can help you understand your options and pursue what’s best for your children. Learn more about how we can assist you by scheduling your consultation today.