Amy Ghosh is a Los Angeles-based Attorney at Law, specializing in Immigration Law, Family Law, and Employment Law, among others. She can be reached at: amygesq@gmail.comIn California, child custody and visitation issues are governed by the Family Code, and the court’s primary concern in every case is the “best interest of the child.” The state’s public policy is to ensure children have frequent and continuing contact with both parents after a separation or divorce, unless it’s not in the child’s best interest.
Here’s a breakdown of the key concepts:
1. Types of Child Custody
California law distinguishes between two main types of custody, which can be awarded as either “joint” or “sole”:
* Legal Custody: This refers to the right and responsibility to make important decisions about a child’s health, education, and welfare. This includes choices about:
* Schooling and childcare
* Medical, dental, and psychological care
* Religious activities
* Extracurricular activities
* Travel
* Joint Legal Custody: Both parents share the decision-making authority. This is the most common arrangement and is strongly favored by the courts.
* Sole Legal Custody: One parent has the exclusive right to make all major decisions for the child. This is typically ordered when parents are unable to cooperate, or when there are concerns about one parent’s fitness, such as a history of abuse or neglect.
* Physical Custody: This refers to where the child lives.
* Joint Physical Custody: The child resides with both parents for “significant periods of time.” This doesn’t necessarily mean a 50/50 split, but it does mean the child has frequent and continuing contact with both parents.
* Sole Physical Custody: The child lives primarily with one parent, and the other parent is typically granted visitation rights. The parent with whom the child lives most of the time is often referred to as the “custodial parent,” and the other is the “non-custodial parent.”
2. How Child Custody and Visitation Are Determined
Courts strongly encourage parents to work together to create a parenting plan that they can both agree on. If parents can’t reach an agreement, the court will step in. The process typically involves:
* Mediation: In California, most counties require parents to attend mediation with Family Court Services before a court hearing. A neutral mediator helps the parents communicate and try to reach an agreement on a parenting plan, which includes a custody and visitation schedule.
* Court Hearing: If mediation is unsuccessful, a judge will hold a hearing to make the final custody and visitation order. The judge will consider what’s in the child’s “best interest” by evaluating several factors, including:
* The child’s health, safety, and welfare. This is the court’s primary concern.
* The child’s emotional ties and relationship with each parent.
* Each parent’s ability to provide a safe and stable home.
* Each parent’s willingness to encourage a relationship between the child and the other parent. Parental alienation is viewed negatively by the court.
* Any history of domestic violence, substance abuse, or child abuse or neglect.
* The child’s preference, if they are of a sufficient age and maturity. While there is no set age, a child’s preference is often given more weight around age 14.
3. Visitation (Parenting Time)
When one parent has sole physical custody, the other parent is typically granted visitation rights. A visitation schedule can be:
* Reasonable Visitation: This is a flexible arrangement where parents agree on the time with the child without a fixed schedule. It works best for parents who can communicate and cooperate effectively.
* Detailed Schedule: A specific schedule is set for weekdays, weekends, holidays, vacations, and special occasions. This is often necessary when parents have difficulty co-parenting.
* Supervised Visitation: If there are concerns about the child’s safety with one parent, the court may order that visits be supervised by the other parent, a trusted adult, or a professional agency.
4. Modifying an Existing Order
Once a custody or visitation order is in place, it can be modified. However, a parent seeking a change must demonstrate a “significant change in circumstances” since the last order was made. Common reasons for a modification include:
* A parent’s relocation.
* New health and safety concerns.
* Parental misconduct or a failure to co-parent.
* A change in the child’s needs or preferences.
If both parents agree to the change, they can submit a written agreement to the court for approval. If they don’t agree, one parent must file a formal request with the court, which will then follow a process similar to the original custody determination.
Here’s a breakdown of the key concepts:
1. Types of Child Custody
California law distinguishes between two main types of custody, which can be awarded as either “joint” or “sole”:
* Legal Custody: This refers to the right and responsibility to make important decisions about a child’s health, education, and welfare. This includes choices about:
* Schooling and childcare
* Medical, dental, and psychological care
* Religious activities
* Extracurricular activities
* Travel
* Joint Legal Custody: Both parents share the decision-making authority. This is the most common arrangement and is strongly favored by the courts.
* Sole Legal Custody: One parent has the exclusive right to make all major decisions for the child. This is typically ordered when parents are unable to cooperate, or when there are concerns about one parent’s fitness, such as a history of abuse or neglect.
* Physical Custody: This refers to where the child lives.
* Joint Physical Custody: The child resides with both parents for “significant periods of time.” This doesn’t necessarily mean a 50/50 split, but it does mean the child has frequent and continuing contact with both parents.
* Sole Physical Custody: The child lives primarily with one parent, and the other parent is typically granted visitation rights. The parent with whom the child lives most of the time is often referred to as the “custodial parent,” and the other is the “non-custodial parent.”
2. How Child Custody and Visitation Are Determined
Courts strongly encourage parents to work together to create a parenting plan that they can both agree on. If parents can’t reach an agreement, the court will step in. The process typically involves:
* Mediation: In California, most counties require parents to attend mediation with Family Court Services before a court hearing. A neutral mediator helps the parents communicate and try to reach an agreement on a parenting plan, which includes a custody and visitation schedule.
* Court Hearing: If mediation is unsuccessful, a judge will hold a hearing to make the final custody and visitation order. The judge will consider what’s in the child’s “best interest” by evaluating several factors, including:
* The child’s health, safety, and welfare. This is the court’s primary concern.
* The child’s emotional ties and relationship with each parent.
* Each parent’s ability to provide a safe and stable home.
* Each parent’s willingness to encourage a relationship between the child and the other parent. Parental alienation is viewed negatively by the court.
* Any history of domestic violence, substance abuse, or child abuse or neglect.
* The child’s preference, if they are of a sufficient age and maturity. While there is no set age, a child’s preference is often given more weight around age 14.
3. Visitation (Parenting Time)
When one parent has sole physical custody, the other parent is typically granted visitation rights. A visitation schedule can be:
* Reasonable Visitation: This is a flexible arrangement where parents agree on the time with the child without a fixed schedule. It works best for parents who can communicate and cooperate effectively.
* Detailed Schedule: A specific schedule is set for weekdays, weekends, holidays, vacations, and special occasions. This is often necessary when parents have difficulty co-parenting.
* Supervised Visitation: If there are concerns about the child’s safety with one parent, the court may order that visits be supervised by the other parent, a trusted adult, or a professional agency.
4. Modifying an Existing Order
Once a custody or visitation order is in place, it can be modified. However, a parent seeking a change must demonstrate a “significant change in circumstances” since the last order was made. Common reasons for a modification include:
* A parent’s relocation.
* New health and safety concerns.
* Parental misconduct or a failure to co-parent.
* A change in the child’s needs or preferences.
If both parents agree to the change, they can submit a written agreement to the court for approval. If they don’t agree, one parent must file a formal request with the court, which will then follow a process similar to the original custody determination.
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