Child Custody & Visitation
In California, child custody cases are perhaps the most litigated cases in all of family law. A child custody case is one in which legal custody, physical custody and visitation (parenting schedule) with respect to a child is an issue. Legal custody refers to the right to make decisions regarding the health, education and welfare of a child. Physical custody refers to where a child will reside. A family court must consider the best interest of a child when making custody orders.
In California, most family courts will order that both parents share in a child’s legal custody – this is referred to as an order for joint legal custody. The courts make such an order because there is a preference that both parents share in the responsibility of making all decisions pertaining to their child’s health, education and general welfare. However, if a parent can prove that there is a good reason why a court should order that only one parent be awarded sole legal custody of a child, then the court has the discretion to make such an order.
As stated above, physical custody refers to where a child will reside. In California, a court can order joint physical custody, which means that a child resides with both parents. An order for joint physical custody is usually awarded when a child spends a significant amount of time at each parent’s house, but this does not always mean that the child spends an equal amount of time at each house. The court can also award sole physical custody of a child to one parent, which means that the child resides with one parent and visits with the other parent.
The issue of physical custody is separate from that of legal custody. For example, if a court issues an order that parents shall have joint legal custody, that does not mean that the court must also order joint physical custody.
Aside from any supporting evidence that a parent may provide to the court when making an argument for sole or joint custody of a child, the California family courts also give weight to the wishes of a child that is of sufficient age to form an intelligent preference as to which parent he or she wishes to reside with. Unfortunately, there is no specific (or magical) age that a child must reach in order for a family court to automatically order a child’s preference, but it is generally believed that when a child reaches about the age of 14, he or she may be of sufficient age to form an intelligent preference. The weight that a family court gives to a child’s personal wishes is determined on a case-by-case basis and this is because no two children are the same.
Every family is unique, so there is no single parenting (or visitation) schedule that works for everyone. An attorney that has experience in handling child custody and visitation issues can assist you in negotiating a parenting schedule with the other parent and his or her attorney. In many cases, however, parents are unable to agree on a parenting schedule and therefore court intervention is necessary in order for the court to issue a parenting schedule that is in the best interest of the child(ren).
In the majority of custody cases, a parenting schedule will need to be modified at some point in the future when there is a change in circumstance. An experienced attorney can also assist when it is time to re-negotiate a parenting schedule with the other parent or when it is time to return directly to court to seek a modification of the existing parenting schedule order.
In California, the process of requesting that child custody or visitation orders be established for the first time or modified at some point in the future is fairly similar. The court will require that there be an active family law matter, such as a divorce or custody matter, and that the parent wanting the orders issued file a Request for Order (RFO) and usually a few more forms as required by the state or your specific county.
After a Request for Order is filed, the court will usually set the matter for a court hearing and refer the parents to participate in child custody mediation (the mediation process varies by county). The parent that filed the Request for Order must properly serve the other parent, through a third-party, with a copy of the Request for Order, and any other required forms by certain deadlines that are set by the court.
For some individuals, the process of requesting that a court issue child custody and visitation orders may seem straightforward. However, there are many steps that take place and there are strict deadlines that must be adhered to by both parents. If this is your first time having to go through the child custody process or you are unsure about the process, then it is strongly encouraged that you consult with a child custody attorney.
Please do not hesitate to contact Valenzuela & Montoya, LLP if you are interested in setting up a consultation with an experienced custody attorney that is able to answer your questions and alleviate your concerns.