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Providing effective representation locally, since 1991.

Child Custody and Visitation

If you and your ex-spouse or partner have a child, you are likely trying to determine how you will care for your child(ren). This may be an amicable discussion or a heated battle. Regardless, there are four basic things you need to know:

1 ) There are two types of custody: legal and physical;
2) Custody is different from visitation;
3) The best interest of the child(ren) not the parents is the key focus when determining both custody and visitation;
4) Custody and visitation are not set in stone. They are both modifiable until the child reaches the age of majority.

Legal Custody vs. Physical Custody: Legal custody determines who makes the legal parenting decisions about the child such as: education, health, and even religion. Physical custody determines where the child resides. In most cases, the law and the courts prefer to maintain joint legal custody for both parties. Physical custody is constrained by many issues such as the physical addresses of both parents and the children's school, work schedules and much more.

Custody v. Visitation: Generally, if physical custody is specifically awarded to one parent, the other parent (who may have joint legal custody) will be granted visitation. When the parents have joint physical custody, the term "time share" is usually used to determine when the child is with one parent versus the other. Don't be confused by the legal jargan. The most important thing to determine is what is the best schedule for the child.

The Best Interest Standard: Custody and visitation are determined by the best interests of the child, not the best interest of the parents. So what factors are considered in this "best interest of the child" approach?

1. The starting point assumes both parents are competent. It is in the child's best interest to have two active and involved parents who can care for the child. Neither parent is given preference based on gender alone. (Note: this issue may arise when children are very young and nursing.)

2. The next big factor to consider is domestic violence. If either party has committed acts of violence against any family or household member, this may play a significant part in the court's determination of custody and visitation.

3. Other factors that are considered (please note that these are given various weight by the court):

   • who is the primary caretaker of the child;

   • who is the more fit parent;

   • the desirability of keeping siblings together;

   • the wishes of the child, if of sufficient age;

   • the parents' lifestyles;

   • whether a parent will encourage or discourage visitation;

   • continuity of a stable healthy environment;

   • the age of the child;

   • substance abuse or chemical addiction of a parent;

   • the quality of each parents' home environment;

   • the parental guidance each parent provides for the child;

   • the ability of each parent to provide for the child's emotional and intellectual development:

   • the relative fitness of the respective parents including their mental condition.

Modification of Custody and Visitation: Once the parties have reached an agreement (or the court issues a custody order), should circumstances change, either party may request a modification until the child reaches the age of majority. Even in situations where one parent has been awarded sole legal and physical custody and the other parent has been absent from the child's life for years, the absent parent may petition the court for visitation and, absent a showing that this will cause great detriment to the child, the absent parent will likely be allowed to reunify with his or her child.

So what is the process for determining custody and visitation? This question is difficult to answer as so many situational factors can and do affect the process directly. To start, the parents are highly encouraged to work together to determine what is best for their child. It is no surprise, studies have shown, that children whose parents who were able to resolve child custody and visitation issues amicably tend to adjust better than those whose parents went through bitter custody battles. If parents are unable to resolve their own issues, before judges get involved, California Courts offer Family Court Services Mediation to help the parents resolve these disputes. If there is no resolution through Family Court Service, the judges will step in and decide for the parents. From here the process becomes more complicated and consequently more costly. Custody and visitation matters may be resolved during one brief hearing before a judge, or they can become so bitter that they last years, involve numerous experts and hours upon hours of testimony.

When considering custody and visitation, we at Hyden Zakheim suggest some food for thought: you and your partner have chosen to live separate lives, but your child still has two parents… There are many milestones for your child to celebrate: graduations, prom, weddings, and more. Don't let your child's joy on those occasions be over-shadowed by two fighting parents.

Resources:
CA courts resource: http://www.courts.ca.gov/selfhelp-custody.htm

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