In California, child custody decisions are based on the best interests of the child. In determining the best interests of the children, numerous factors are taken into consideration. Some of these factors are the emotional relationship between the child and each parent, the capacity of each parent to provide for the needs of the child, and the physical environment each parent offers, among others.
Children generally must be around age thirteen (13) before a Judge will take into consideration their wishes as to whom they will live with. Depending on the facts of the case, a minor’s counsel may be appointed by the Court to represent the best interests of the child, although this is not usually done.
A parenting plan will be established in any custody case. A parenting plan establishes things such as who will make decisions affecting the child, how time will be split between the parents, and which parent the child will spend holidays with.
A plan can be extremely detailed to include telephone contact phone number with the child while at the other parent’s home, or just the bare minimums. If a parenting plan cannot be agreed upon by the parents, the Court will implement its own parenting plan.
Legal and Physical Custody
There are two related types of custody, legal and physical. Legal Custody refers to decisions about the children’s health, education and welfare. These might include such things as where the children will go to school or whether they should have braces on their teeth. If the parents share joint legal custody, then they must share information about the children with each other. No matter who has custody, both parents have equal rights to information about their children from schools, doctors and other professionals.
Physical Custody refers to the time actually spent with each parent on a regular basis. The children might spend school days with one parent and weekends, a mid-week dinner visit and half the holidays and some vacation periods with the other. On the other hand, the children might alternate staying significant periods with each parent, from week to week or other types of plans. If the parents live near each other, the children may go back and forth between them without an exact schedule. Usually, parents who want and are able to manage a joint physical custody arrangement are those parents who are able to work out a routine on their own or with a mediator’s help.
A Judge could give both parents joint legal custody but not joint physical custody. In this case, both parents would have equal responsibility for important decisions affecting the children’s lives but the children would live mostly with one parent. The parent who did not get physical custody would usually have regular contact with the children.
In most cases, the parents are able to negotiate their own agreements as to custody and visitation. When this occurs and the parents agree to joint custody, the Judge is inclined to grant this. When parents are unable to agree, the Judge can award sole or joint custody.
California law requires that Judges must award custody according to the “best interest” of the minor children. California custody laws have changed a good deal in the last few years. Courts no longer automatically give custody to mothers instead of fathers, even for small children. In addition a court cannot deny custody or visiting rights simply because the parents were never married to each other or because one of them has a physical disability, unconventional lifestyle, religious belief or sexual preference.
A parenting plan, also called a “custody and visitation agreement” or a “time-share plan,” is the parent’s written agreement about how much time the child will spend with each parent, and how the parents will make decisions about the child’s welfare and education.
Generally, parents will alternate every other weekend. The start and end time of the weekend varies from case to case, but may include time from Thursday evening to Monday morning. Usually, the custodial parent has the child during the week; however, some visitation time may be included during the week.
Holidays are normally alternated every other holiday over a two year period. This way the children will get to spend every holiday with each parent over the two year period. The specifics of the parenting time will be set out in the parenting plan and become part of the final decree.
Parents are required to take a parenting class when child custody is involved. Parenting classes help parents understand the impact of divorce and separation on their children. A parenting class can also help parents understand that stages of grief and loss, preventing alienating a child from the other parent, improving communication, and developmental ages and stages of children and helpful parental responses.
Mediation may be required if the parties are not able to come to an agreement regarding the care of their children. Mediation is a process in which a neutral, trained, party works with the parents to assist in creating a parenting plan. Mediation may help the parents focus on creating a parenting plan that is in the best interests of their children. If the parties are still unable to come to an agreement even after mediation, the Court will ultimately make a determination as to the custody and parenting time of the children.
The Law Office of Paul A Lovrich helps clients with all issues that arise in child custody disputes. If you need help with your current child custody arrangement, contact Law Office of Paul A Lovrich at (408) 823-4554 to schedule an appointment.