CHILD CUSTODY AND VISITATION

How can I protect my children from being affected by the dissolution?

Often times when husband and wife go through a high conflict dissolution they have a lot of animosity and bitterness toward each other. Quite often in this situation the parents are not guided by reason and the best interests of their children, but by a desire to make the other spouse suffer by putting each other through needless and costly litigation. In situations like this, the best-interests of the child get disregarded. If this happens, parents overlook this type of conflict/behavior, which results in a substantial emotional harm to their children. These situations include but are not limited to the following;

  • One spouse presenting the other spouse in a negative light;
  • Involving the child as his or her ally;
  • Preventing a non-custodial parent from having contact with the child;
  • Using the child as a messenger to convey some negative information to the other parent;
  • Asking/making the child spy in the other parent’s home and/or get some negative information/photos to be used in court by the other parent.

Usually, the children get hurt the most in situations like this. As hard as it at times could be, but parent should always put the interests and the best interests of their children first. No child wants to be exposed to this can of conduct by the parents. You always need to keep in mind that no matter how hard the dissolution is for you, it is much more painful for the child, as he/she did not chose to go through this and often times children blame themselves that the parents are going through the divorce. In this situation, more than ever the child needs whatever stability he/she can get and support and love from both parents.

 

It is also important to consider consulting psychotherapist for yourself in order to help you avoid improperly involving the children in the dissolution; and/or for the children when they are exposed to the trauma of the marital dissolution.

 

How many types of child custody are in California?

Under California law, child custody has two part: physical custody and legal custody. Either type of custody may be awarded to one parent or to both parents.

 

What is legal custody?

Legal custody has to do with a parent’s right and responsibility to make decision in connection with the child’s health, safety, welfare, and education. Often times both parents get joint legal custody, but not necessarily physical custody.

 

What is physical custody?

Physical custody measures the amount of time a child spends with each parent. There can be joint physical custody and primary physical custody, where the child has primary residence. Physical custody must be shred in such a way where the child has “frequent and continuing contact with both parents.”

 

What parent gets physical custody?

The law does not prefer one parent over another. Custody must be awarded according to the child’s best interest. It may not be awarded based on the factors that include but are not limited to the following: interests of the parents, to achieve equity between the parents, to punish/reward a parent, gender, nationality, sex orientation, religious beliefs of a parent.

Unless it is contrary to the best interests of the child, the court must ensure that minor children have frequent and continuing contact with both parents after the separation and/or dissolution and that both parents share the rights and responsibilities in child raring.

 

What are the common arrangements for child visitation?

Parents can agree on a visitation schedule that they believe is best for their child. In case when the parents can not agree and they have to go to court, here are just a couple of examples of common arrangements:

  1. Alternate weekend visitation with the noncustodial parent with a mid-week visitation.
  2. Sharing of the child during periods of school recess – winter, spring and summer.
  3. Alternate years for the holidays and the child’s birthday.
  4. Mother’s Day with Mother; Father’s Day with Father.
  5. Open telephone contact, usually once a day, for the parent who does not have physical custody of the child.
  6. Usually the receiving parent is responsible for transportation.

 

 

The other parent is not complying with the custody/visitation court order. What are my options?

Try to address it with the other parent first before taking any drastic measures like calling the police. If you do not feel comfortable talking to the other parent face to face, send him a text or an email. Putting it in writing also creates a record if you later decide to go to Court and file a Request for Order for modifications of custody/visitation due to the other parent noncompliance with the Court orders.

 

In some situations, if you have a valid court order and the other parent is not complying by refusing to return the child as per the court order, you can call the police. You can file contempt.

What if the holiday visitation schedule conflicts with the regular visitation schedule?          

Unless otherwise ordered by the court or agreed by the parties, holiday schedule takes precedence over the regular visitation.

 

My spouse and I are separated and he/she will not let me see our children. What should I do?

You need to file a Request for Order to seek court orders for custody and visitation.

 

Does the Court favor a certain parent more over the other on custody award issues?

No. The Court looks at the best interests of the child.

 

If I have custody of our children during the week, does my ex-spouse have the right to pick them up from school as she/he wants to do so?

No. Unless both parents agree to modify custody orders, the orders must be followed.

 

At what age can a child decide with which parent he/she wants to reside?

The Court looks at the best interest of the children. In San Diego County the Family Court Services counselor will interview the parents and make a recommendation to the Court pertaining to the custody and visitation. If the counselor choses interview the child, she/he will interview the child separately from the parents, if the child is over 5 years old. The child’s wishes may be taken into consideration by the court.

 

What if there is a court hearing for custody and visitation coming up and the parents decide to move in together?

The answer would depend on whether you are reconciling or not. If you are not sure if you will be reconciling then you will need either need to do a stipulation and file it with the Court or go to the hearing have the Court make orders. If you do reconcile after that you can always modify court orders by your written stipulation

 

What if I am available to babysit our child during the other parent’s custodial time, do I have to agree for the child to be taken to daycare?

Usually the parents agree or the court orders the right of first refusal for the custodial parent to offer the other parent to care for the child if the custodial parent is not able to do so for a certain amount of time. If there is no clause providing for the right of first refusal in your custody orders, or it does not apply, the other parent can ask 3rd parties to care for the child.