Child Custody and Visitation Issues and Orders

There are two areas of child custody, “legal custody” and “physical custody” which involves “visitation,” (a.k.a. “parenting time,” or “timeshare.”) Legal custody has to do with the right to make decisions regarding your children. A judge can order one of two forms: joint legal custody or sole legal custody to one of the parents. Physical custody of the children has to do with the percentage of time they spend with each parent, and can vary, widely, depending on circumstances.

One of the goals the state has embodied in the law, is that children should be able to enjoy “frequent and continuing contact” with both parents, where appropriate, even if the percentage of time spent with each parent is not equal. In cases where the ordered timeshare is unequal, the court’s order may still say that the parents share “joint physical custody”. Sometimes sole physical custody is awarded to the primary parent and sometimes the court will order joint physical custody, with “primary custody” or “primary residence” or “school-time custody” to one parent, to reflect the reality of the actual timeshare.

Many factors can be considered by the court in awarding custody, and the way a case is presented to the judge can have a large and long-lasting impact on the children of divorcing parents. It is very important to properly prepare for a court hearing on custody, if parents cannot agree on what is best for their children. But you should try hard to reach your own agreement.

Legal custody of children involves the rights and responsibilities of caring for children, and whether one or both parents should have those rights and responsibilities. When it is in children’s best interests, the law prefers that parents share joint legal custody when they divorce or separate. Joint legal custody means that each parent retains an equal right to have input regarding major decisions affecting their children, including, but not limited to, where their children live and go to school, which pediatricians or therapists they may see, etc.

In most cases joint legal custody is ordered unless there is substantial evidence that one of the parents is in some way unfit or absent.

In the vast majority of cases it is deemed appropriate that the parents share legal custody because of the long-standing belief, backed by decades of psychological research and experience, that children need to have a significant and positive relationship with both parents. It also means that both parents should be able to make decisions for their children.

Physical Custody Though the law prefers joint physical custody, in many cases where both parents are otherwise fit to raise their children, practical concerns may justify a request that one parent have “primary” custody. If one parent has a more strenuous work schedule, or has to travel a lot, and the other parent works part-time, or is a stay-at-home parent, it may be better for children to spend more time with one parent than the other. As long as the minority timeshare parent continues to see the child frequently, and is able to spend all or most of that lesser time actually with the child, engaging in quality activities, the lesser quantity of time is not necessarily detrimental to the parent-child relationship. Having a primary custodial parenting situation can also save on the cost of child care.

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Parental Relationship of Child Born Outside of Marriage:

If a couple is unmarried at the time of a child’s birth, and the man signs a Voluntary Declaration of Paternity at the hospital – which is now required to have his name put on the birth certificate – he is also considered a “presumed father” even if he is not the biological father. Because the public policy of the state is to promote the financial and psychological stability of children, there is a time limit (statute of limitations) of two years from the child’s date of birth during which paternity may be challenged and genetic testing may be ordered. After the age of two, if there is a judgment of parental relationship, the parents remain married, or have separated or divorced, the court will not order genetic testing to determine paternity, regardless of circumstances. However, in some cases, where no Declaration of Paternity was signed, and no father’s name was placed on the birth certificate, paternity may be challenged within two years of the entry of a judgment of paternity, regardless of the child’s age.

A Petition to Establish Paternal Relationship case filed in the family court, sometimes called a “paternity” case, covers all matters involving proving a child’s parentage to determine who has the rights and responsibilities to care and provide for the child. In the vast majority of cases, this involves “ordering” who the father is.

If a couple is married at the time a child is born to the wife, the presumption is that the husband is the child’s father. The husband will be considered the legal or “presumed” father, unless the mother or another potential father steps forward to challenge his paternity, or the presumed father challenges his own paternity.

Some paternity cases stem from a Department of Child Support Services case called Governmental Petition to Establish Parental Relationship. These cases request orders for child support based upon the mother’s assertion that a particular man is the child’s father, whether or not a father’s name on the birth certificate. To obtain a child support order, DCSS first must first request that the court enter a Judgment of Parental Relationship. In many of these cases, the putative father fails to respond to the Petition, and never appears in court, not understanding the meaning of the paperwork that has been served. In this situation the Judgment of Parental Relationship is entered by “default” because of the “father’s” failure to respond. When he finally gets smart, realizing his wages are being garnished for child support of a child he believes he never fathered, he usually will be given one opportunity by the court to have the default judgment “set-aside” and request genetic testing, if he follows the proper procedures to do so. This must be done the first time he goes to court, and he must never acquiesce to orders, even if child support is reduced, before requesting the judgment be set-aside, or he will be found to have failed to exercise his right to request the default judgment be set-aside.

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grandparent’s rights

The courts would like to see children grow up with supportive extended families. However, there are times when one or both parents decide not to allow their child/children to have a relationship with a grandparent or grandparents. Sometimes this is because they truly believe it is in the children’s best interest to spend time with their grandparents because of legitimate fears or concerns. Unfortunately, there are also cases where parents are mad at grandparents because of personal differences and take out their anger by not letting them see their grandchildren.

It can be difficult for grandparents to claim “rights”. If they can prove to the court that they have an existing bond with the child or children and that bond is crucial to the children’s and continued visitation is in the best interest of the children, orders can be made.

Court Ordered Mediation of Children’s issues:

Judges always tell parents that it is far better for them to reach agreement on the division of custody, than to have a stranger wearing a black robe make the decision for them. The judge does not know you or your children, and may be unsure of what is best for them. The judge understands that you – the people who know your children best – should have the first chance to try to reach an agreement. Thus, the law requires that parents filing for custody orders, who are at odds, must engage in mediation before the court hears the case.

Family Court Services is an “arm” of the court, usually run by a psychological professional with a team of trained mediators, who specialize in trying to help parents agree on custody and visitation orders. If parents don’t agree on their own, and have to go to court to try to get orders, in nearly all cases they are required to go through the mediation process to see if they can agree, before the court will hear the case.

Each California County Superior Court has a choice of one of two types of Family Court Services they offer and depend upon to help resolve contested custody and visitation cases. Each county chooses to be either “recommending” or “confidential”, and parties are limited to that county’s particular choice. In recommending counties, if the parents cannot agree, the mediator makes a written recommendation to the judge, which is usually given significant consideration, but may be challenged. In confidential counties, the mediator is not allowed to make a recommendation if the parties don’t agree, and, instead, simply sends the case back to court for the judge to hear evidence. In fact, in confidential counties, if the case is sent back to court for a hearing, no one – not even the parents or their attorneys – is allowed to mention in court anything that was said in mediation. The theory is that if the parents know their discussions in mediation are completely confidential, they will be more likely to be frank and honest in mediation, and more likely to reach agreement with the help of the mediator.

Both systems have their pluses and minuses. As an attorney, I have found difficulties with both. Sometimes the mediator may make a terrible recommendation, which then must be fought to obtain appropriate orders. In confidential counties, sometimes not being able to make a recommendation is a problem when the mediator recognizes which party is being reasonable and which is being obstructive, and is not allowed to bring this to the judge’s attention.

Move-Away Issues:

When a separated or divorced parent seeks to relocate his or her children’s residence out of state or out of the county where they have been living. This is called a “move-away” case. The parent seeking to move may be a sole custodial parent, or may share custody with the other parent. There are many variables in these cases, including the fact that some proposed moves are not as far away as others, but, in any case where the move will necessitate a change in the frequency or duration of contact with the parent remaining behind, the court often must be involved. A parent seeking to move with the children must give notice to the other parent within an amount of time enabling the other parent to file a motion opposing the move, if he or she chooses to. In most counties, this is at least sixty days advanced notice.

A parent with true sole legal custody has a presumptive right to move away with the children. However, this presumption may be “rebutted” by the non-custodial parent, if it can be shown that the move would be detrimental to the children’s relationship with the non-custodial parent. The trial and appellate courts have gone back and forth over the past 25 or 30 years regarding how the custodial labels should or should not affect the right to move with children, but today the basic premise is that the trial court in most cases must ignore the labels and look at the actual timeshare the children enjoy, and the nature of their relationship with both parents. This is, essentially, litigating custody all over again, based on what is in the children’s best interests, and is sometimes called a “trial de novo” – Latin for trial anew.

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Jurisdiction and Venue Issues:

The term “jurisdiction” refers to the state in which a case is filed. The term “venue” refers to the county in which a case is filed. In other words, the whole state of California may have jurisdiction over the parties to the case, but if the parties live in different counties, the case can be filed in the county where either party resides. For California to have jurisdiction, one or both parties have to have lived in the state for at least six months prior to the date of filing. For a California county to be the proper venue, one party has to have lived that county for at least four months prior to the date of filing.

An issue of whether a case is filed in the appropriate jurisdiction typically arises in the beginning of the case. The same may be true of an issue of whether the case is filed in the proper venue. But, venue can be changed long after a case has been filed and even litigated. In the past, often separate cases would be filed by the parties in different counties or states, resulting in conflicting orders regarding any issue. The worst cases where conflicting orders were made involved custody of children. To remedy this perennial problem, all 50 states passed a uniform law, based on federal legislation, setting out the rules for determining where a case is properly filed. In its current form this law is called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

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