If you are facing a divorce, separation, or other family law situation involving your child, it’s important to understand the legal terms used by family courts in California. In general, “child custody” deals with parents’ rights and responsibilities related to their children during and after a divorce or legal separation. “Visitation” deals with the amount of time each parent will spend with the children after they split.
Custody and visitation orders are usually entered by the judge to describe both parents’ obligations. If the situation is amicable, the parents can agree on custody and visitation. If the parents cannot agree, the judge will decide. If the parents reach an agreement, the judge must approve the terms of the agreement before it is final and enforceable.
Under California law, both parents are entitled to custody of a child, absent extenuating circumstances such as serious abuse. “Physical” custody refers to the amount of time each child will spend with the parent. “Legal” custody refers to the right of the parent to make decisions for the child’s welfare.
To help them reach an agreement regarding custody and visitation, the parents are required to meet with a Family Court Services mediator before the judge will decide or approve a custody and visitation resolution.
Joint Custody Versus Sole Custody
There are two types of joint custody—joint legal custody and joint physical custody. Most judges prefer to award joint legal and physical custody of children to both parents, unless there are severe circumstances where it should not be allowed.
In “joint legal” custody, both parents have the right to make decisions on behalf of their child in medical, financial, mental health, religious, extra-curricular, educational, and other important situations. “Joint physical” custody means the child will divide time between the parents’ homes. Often the time is equally divided between the parents. If the child spends more time with one parent, that parent is referred to as the primary custodial parent.
The court can award both joint legal custody and joint physical custody if the child will benefit from splitting time and having two parents making important decisions on their behalf. However, under either joint arrangement, the parents must be able to communicate and cooperate to provide the best experience for the child.
“Sole legal” custody, on the other hand, means one parent is authorized to make all important legal decisions on behalf of the child without consulting with the other parent. “Sole physical” custody is when the child lives mostly with one parent and usually visits with the other parent according to a set schedule.
While each parent often believes he or she is the best caretaker of their child, sole custody is very rare. California law encourages continuing relationships between parent and child.
What is a Visitation Schedule?
Assuming both parents are allowed to spend time with their child, a visitation schedule can help set expectations and avoid future disputes or confusion. This document describes the times when the child will be with each parent and may include details such as vacation schedules, holiday celebrations, special events like birthdays, or school activities, to clarify where the child will be and when.
If the parents get along and communicate well, a simple visitation schedule may include fewer details and allow for more flexibility and adjustments as needed. All parents should remember children commonly suffer when their parents disagree about visitation and the child is caught in the middle.
Under certain situations, the court may order supervised visitation for one parent. This usually happens when the court determines that a parent is likely to harm the child, physically or mentally, and the court must protect the child during visitation. Supervised visitation may also be ordered when a parent has not seen a child for a long time and they need time to get reacquainted in a controlled setting.
If the court finds that a child will be harmed when visiting with a parent, even under court-ordered supervision, that parent may be denied visitation altogether. Total denial of visitation is not common.
What is the Best Interests of the Child Standard?
If the parents cannot agree on custody and/or visitation, the court will decide based upon the legal standard known as the child’s “best interests.” The court will consider these issues when determining what custody or visitation is best for the child:
- The child’s age
- The child’s physical and mental health
- The relationship between the child and each parent
- Whether the parents can provide proper care for the child and the stability of each home
- Whether each parent will encourage frequent and continuing contact with the other parent
- Whether there is proof of violence or substance abuse in the family, and
- Whether the child has connections to a certain school, home, or community.
The court cannot base a custody or visitation decision solely on these factors:
- The gender of the parent
- The age or gender of the child
- Whether the parents were legally married
- A parent’s physical disability
- A parent’s lifestyle, religious beliefs, or sexual orientation.
Can the Child Choose Who to Live With?
According to Family Code §3042, when ordering or modifying custody and visitation issues, family courts must consider and give weight to a child’s preference about which parent they want to live with when the child is of sufficient age and ability to voice an intelligent opinion. The court may consider the child’s preference when deciding custody or visitation issues, but there is no guarantee that the child’s preference will control.
In California, if a child is at least 14 years old, he or she is allowed to express an opinion to the court, unless the judge feels it is not in their best interest to testify. The court will decide whether the child can testify on this subject on a case-by-case basis to protect the child from embarrassment or harassment. If a child does not want to state an opinion, they cannot be forced. Instead of testifying in open court in front of the parents, the court can appoint an attorney to represent the child, called “minor’s counsel.”
If You Have Questions About Custody and Visitation, We Have the Answers
Attorneys Deirdre Kingsbury and Noreen Evans understand the complexities of family law cases and how children can be caught in the middle. They can explain your options and what custody and visitation rights you can expect. At Evans Kingsbury LLP, we are family lawyers with decades of experience, including family trials and settlements. Call us today at (707) 596-6090 or fill out our easy contact form to discuss your case.