Divorce, Child Custody and Visitation

At the end of the day, our children are the most important part of our lives. There is no reason why a divorce or separation should change that. You just have to be creative and sometimes you have to fight for your right to stay involved in your children's lives when the other parent tries to interfere with your right to be a parent. Our firm will help you to fight for your right to custody and/or visitation of your children and work with you to come up with an agreement that's best for your kids.

I'm considering filing a divorce or splitting up with the other parent and want custody of my child. What do I do?

First, it's important for you to understand that there are two types of custody and it's important to make sure you understand both in asking this question.

The first is what's called legal custody. Legal custody refers to who has the right to make decisions about your kids health, education and welfare. Typically, the courts in California will give each parent joint legal custody, unless it is shown that one parent, either due to their being difficult or not being available, would undermine a joint legal custody arrangement. In such circumstances, the Court would award the other parent sole legal custody.

The second type of custody--and this is the one which most people mean when they say “custody” — is physical custody. Physical Custody refers to where the child lives. When figuring out physical custody, the courts will use the “best interests of the child” standard. The courts will look to a variety of factors in to reach their decision, including: what has been the past pattern or “status quo” of custody and care for the child? Where has the child been living up to this point? Are there any health concerns or risks for the child "Legal custody determines who has the right to make decisions regarding the health, education and welfare of the child."if he/she is with one parent versus the other? Are there any allegations or past acts of domestic violence against one parent and/or the child? If custody is awarded to one parent, will that parent permit or interfere with the other parent's visitation rights?

When checking out the facts, most counties in California will have a qualified mediator, selected by the Court, interview each parent. These mediators are usually part of the family court services department who work on a regular basis with the family law courts. In some counties this is called a screening but the process is the same. The mediator interviews both parents to learn all facts they need to make a custody recommendation. Some times, the mediator will need to interview the kids, especially if the child is older, generally about 14 and up. This is because an older child's desires about where to live are given significant weight by the courts in making a custody determination.

After the mediator concludes her investigation, she will write up a report that will include any agreements they parents have reached and, in those areas on which there is no agreement, the mediator will make various recommendations regarding custody and related issues. This report will be presented to the parties and their attorneys (if any) and to the Court. If neither party has any objections to the mediator's report, it will usually be adopted by the Court. If either party has objections, the court will try to resolve those at the initial hearing or, if the disputes will need additional evidence or involve disputes over evidence, the court will set the matter for a custody trial.

In some cases, where, for example, there are allegations of drug and/or alcohol abuse by one parent, or where one parent wishes to move away, that the mediator and/or the court will recommend that this matter be referred to a private child custody evaluator. There are psychiatrists or psychologists with experience in custody issues. These are private professionals and the parties will be responsible for paying their fees (which can anywhere from $5000 and up), either jointly or one party will be ordered to pay the full cost with the right to seek reimbursement from the other party later.

There is a child custody order in place and I want to have it modified. What do I do?

An existing custody and visitation order can be modified upon a showing that there has been a material change in circumstances since the court's last order. Facts that can satisfy this standard can include, but are not limited to: the party with visitation has been consistently missing assigned visitation or has been having increased visitation; the party with custody has been intentionally interfering with the other party's visitation rights; circumstances exist which pose a risk of harm to the child while in either parent's custody; the child desires to live with the other parent and the child is fourteen years old or older. There are countless other facts that can satisfy this standard. These are just some of the more common reasons for changing an existing custody and visitation order.

I want to move out of the county or out of state with the child. Can I do that?

It depends. Is there a custody order in place? If so, what is the custody arrangement? If the parties have a true joint custody arrangement, the burden will be on the party requesting to move away with the child to show that such a move is in child's best interest. If the party wishing to move is the primary custodial parent pursuant to a "Legal custody determines who has the right to make decisions regarding the health, education and welfare of the child." custody order, then it will generally be presumed that such a move is appropriate unless the non-custodial parent can show that the move is done in bad faith, i.e., intending to interfere with the non-custodial parent's visitation or is not in the child's best interests.

If there is no custody order in place it is advisable to try to bring a court action to determine custody. Should the parent out of the state while there is still no custody order in place, and you permit that child to live out of state for six months or more, it is possible that the parent with the child can establish home state jurisdiction in that new state and force you to have to go to that state to fight over custody and visitation.

What type of proof do I need to support my custody claims?

As much as possible. Generally, it is a good idea to have documentation of your claims. For example, if you are claiming that you are the primary person responsible to taking your child to preschool, or school or daycare. Do the facilities have some type of sign-in requirement? If so, a copy of that log, authenticated by the appropriate person, proving that you, in fact, are the parent responsible for signing in or signing out your child carries greater weight that you just testifying in court that you do it. Copies of emails and printouts of texts or other forms of electronic communication are useful to prove various statements of the other parent or necessary persons. Affidavits and testimony from other persons to support your allegations can help bolster your claims. Generally, it is better to have some form of documentary or objective proof to backup what you are claiming.

I can't afford an attorney and the other parent can. I guess I'll just to have settle for representing myself and take my chances.

Not necessarily. California's Family Law Code provides the court's with authority to order one party to pay for a portion or all of the other party's attorney's fees if doing so will insure that the party requesting attorney's fees needs this insure adequate access to an attorney and the other party has the means to pay. Of course, this determination is left to the Court's discretion after assessing the financial condition of each party.

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