Child Custody & Visitation
Parents going through a separation process usually have many questions about what the future has in store for visitation. Going through a break-up can be hard enough, but having to decide custody and visitation can be an agonizing process when parents don't get to spend as much quality time with their children. Rising questions and anxiety about the future shouldn't keep you awake at night. If you need help preparing a parenting plan agreement or need to fight for your custody rights, secure a California Child Custody and Visitation Lawyer who can supply you with the experience, empathy and representation you are rightfully due. Child custody contests necessitate legal savviness and skillful advice. Parents that are able to reach agreement on custody and visitation issues should authenticate the stipulation by filing it with the court since court orders are the mechanism to enforce the agreement. Also, having an official court order helps parents if the other parent acts impulsively and decides to move-away to another state with the children. Obtaining legal advice is critical even when there is an agreement so you can be completely informed. If you make an agreement that you later regret, it will be extremely difficult to modify it. Being fully informed is the best way to avoid the pitfalls. Helping clients reach an agreement and keep the peace is our goal even for the most contentious litigants.
What happens if there are no court orders?
When parents separate for the first time, there is a lot of uncertainty about what parent will have custody of the children. The uncertainty and anxiety is very high during this initial break-up period because there are no court orders for law enforcement officers to enforce. One parent may decide to take the children or keep the other parent from seeing them. Child custody and visitation orders from a judge usually prevent parents from taking such drastic conduct since a parent can face jail time for failing to comply with court orders. Once parents separate, a paternity case or a dissolution of marriage should be filed with the court along with a request for order for child custody and visitation. The summons is one of the primary documents that initiates a case, and the summons has automatic temporary restraining orders preventing the parents from removing the children from the State of California without the other parent's permission or an order from the court. Preventing a parent from removing the children from the state is a huge first step for obvious reasons.
When no court order is in effect, parents should attempt to work out a custody schedule or parenting plan that works best for them since they truly know what will work. However, many parents tend to disagree on what they believe is in the best interests of the children. Parties may be able to file for ex parte emergency relief in limited circumstances, but simply wanting immediate custody orders is not considered an emergency. It is natural for parents to think that there is an emergency because there are no court orders, but parents will get a rude awakening if they attempt to file ex parte when they simply want custody. The appropriate relief in most cases is filing a request for order for child custody and visitation, but parents think that waiting several weeks for a court date is too long. However, that is the court process and could be the first of many court dates.
Sole Physical Custody
Sole physical custody occurs when one parent has the child or children the majority of the time subject to the other parent's visitation rights. The children will live with one parent, but the other parent has the ability to have visitation. The parents can agree to this schedule or a court can order sole physical custody depending on the facts presented to it.
Sole Legal Custody
Sole legal custody occurs when one parent is able to make the decisions about what school the children will attend. Also, the parent with sole legal custody can decide on nonemergency medical issues and religious issues. The court can order that both parents have joint legal custody, but one parent can have the authority to make the final decision as the tie-breaker when parents can't agree.
Joint Physical Custody
Joint physical custody occurs when both parents share a substantial share of the custodial time with the child or children.
Joint Legal Custody
Joint legal custody occurs when both parents have the ability to decide on their children's upbringing. Both parents have the ability to communicate with one another about what school the children will attend, extracurricular activities, and jointly agree on nonemergency medical decisions.
Since issues surrounding joint and sole custody are challenging, seeking the representation of a California Child Custody Attorney is crucial. Making mistakes and decisions by yourself early in the proceedings will have long-term consequences since you will have extreme difficulties rectifying the poor decisions you made without consulting with a California Family Law Attorney.
Timeshare and Parenting Plans
Timeshare refers to the custodial time each parent has with the children. Parenting plans articulate with specificity the days and times each parent has with the children. Some parents are able to reach their own agreements without a judge interfering in your lives. However, judges will hear from self-represented parties and California Child Custody Lawyers, and make custody and visitation orders in which the parents must abide by. These parenting plans the courts create may not be desirous of both parties, and that is why it is so important for the parents to reach their own agreements. However, if you observe family law court proceedings, you will see that many parents are unable to reach their own agreements. California Family Code Section 3040 states a preference that both parents share joint custody, and it also requires the court to look at which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent.
Best Interest of the Child Standard
The court and parents must look at the best interest of the child standard in making child custody and visitation decisions. There are factors for the court to consider, such as the age and health of the children; The emotional ties between the children and parents; The ability of the parents to care for the children; Any history of domestic violence or substance abuse; and the child's ties to his or her home, school and community.
Complexity of Child Custody and Visitation in California
California divorce lawyers can discuss the specifics of your divorce or paternity case. Some parents believe that the other parent requires supervised visitation. Supervised visitation allows the other parent to see the children, but only if a professional monitor or a selected family member or friend is present to supervise the visit. The other parent may not believe that supervised visitation is in the best interests of the children, and will seek an appropriate order from a judge. Grandparents may want to visit with the children if the parents don't allow them to see their grandchildren. Grandparents may file for visitation rights under limited circumstances. Also, grandparents may be able to file for guardianship of the children if visitation is inappropriate since guardianship cases allow grandparents to have custody in various circumstances, such as when the parents are unable to care for the children. Other child custody scenarios that arise are step-up parenting plans for when unmarried parents have a child. The mother will usually nurse the child for a period while the father wants to visit with the child. If there are no agreements between the parents, the court could order a step-up parenting plan where the father will gradually spend more time with the child as the child grows and ages. Many fathers dislike this approach, and that gave rise to the fathers' rights movement. Many professionals have determined that a step-up approach is appropriate. Step-up plans are not always appropriate and a California Child Custody Attorney can discuss the specifics concerning these issues.
Move-away and Relocation with Children Requests
The complexity of child custody and visitation laws increases significantly when one parent decides that he or she wants to move far away from the other parent with the children. Imagine your child moving away with your ex from Los Angeles County to Miami, Florida. These are some of the most difficult and traumatic cases since one parent will be spending significantly less time with their children whether or not the request is granted. In fact, parents seeking a request for order to move-away need to think long and hard since the court will generally rule on the case as if the parent making the request is moving away. The parent that decides to change his or her mind after a move-away request gets denied could be in for a rude-awakening when the judge changes primary custody to the parent who did not make the request. The parent whose request to move-away that got denied could be in a situation where he or she does not have primary custody or has substantially less custody if the court acted as if that parent was going to move regardless. Not all cases are alike, but serious consideration needs to go into making a request to relocate with the children. Child support is also a major issue in a relocation case since one parent will generally be paying significantly more in child support since the parent with more custodial time can generally receive more money in child support.
California Child Support Attorney
Child custody and visitation cases are generally connected to child support since the amount of custodial time a parent spends with the children impacts the amount of child support that is paid. The court will look at the amount of time each parent spends with the children, the number of children the parents have together and income of each parent in determining the amount of child support that is to be paid. There are other factors that are considered, but these are the main factors. Consulting with a California Child Support Attorney should be one of your first steps in dealing with child custody and visitation cases since taking the correct steps from the beginning can help prevent a person from going through a lot of unnecessary grief and frustration.
Please call our office to schedule your initial confidential consultation.
Joseph Torri, Attorney at Law is no longer accepting new clients. Also, Mr. Torri is not offering a free initial consultation.