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Divorce Library – Custody/Visitation Faqs

  Custody rights?
 

If there are minor children of the marriage at the time of dissolution then the parties will need to agree, or the court will need to make a determination, regarding custody of the minor children. Orders for custody are made with regards to Legal Custody and Physical Custody of minor children. These terms are described below.

Custody and visitation can be agreed upon by the parents without having to go to Court and the provisions of a custody and visitation parenting plan can be included in a Marital Settlement Agreement.

However, it custody or visitation is in dispute, the Court will make a determination regarding what is in “the best interests of the child.” In making this determination, the Court will take all circumstances into consideration including, but not limited to, (1) who has been the primary caretaker of the child; (2) the psychological profile of each parent and the Court does have the authority to order full psychological evaluations (which are extremely costly) of each parent to consider when determining the issue of custody and visitation; (3) if the child is of sufficient age and maturity, the desires of the child; and (4) any other circumstances the Court deems important.

What’s most important to remember is that if you go to court over this issue, the Court is not interested in what you want. The Court is only interested in what is in the “best interests of the child.”

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  What is legal custody?
 

Legal custody allows one or both parents to make decisions regarding the child’s health, education and welfare.

  1. Joint Legal Custody:
    Typically, parties are awarded joint legal custody of their children which means they are each entitled to make decisions regarding the children’s health, education and welfare.
  2. Sole Legal Custody:
    However, if one parent is deemed unable to make appropriate decisions in the best interests of the child then the Court does have the power to award sole legal custody to one parent who is then able to make all decisions regarding the child. An award of sole legal custody to one parent is not typical but will be awarded if one parent is incapable of taking care of, or making appropriate decisions for, a child.

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  What is physical custody?
 

Physical custody allows one or both parties to make decisions regarding the date to day matters involved in raising a child.

  1. Sole Physical Custody:
    Sole Physical Custody gives one parent primary control of the day to day activities regarding the child and is often awarded to the parent who has the child in their custody a majority of the time.

    However, one party can be awarded Sole Physical Custody without having Sole Legal Custody. If one party has Sole Physical Custody but not Sole Legal Custody, this parent can make decisions about the day to day activities regarding the child but this parent does not have the sole decision-making authority regarding the health, education and welfare of the child.

    Getting an award of Sole Physical Custody does give a benefit to one parent if that parent desires to move out of the county or out of the state at some point in the near future, as it may be easier for a parent with Sole Physical Custody to move. However, A discussion of “move-aways” is outside the scope of this information and you should contact Yelman & Associates or an attorney of your choosing to discuss this issue in greater detail.

  2. Joint Physical Custody:
    This is when both parents have significant periods of physical custody with the child and the child is then afforded frequent and continuing contact with both parents. Joint physical custody does not mean that the parents share the child equally, 50/50. But it does mean each parent has significant time with the child.

    Again, the title of Joint Physical Custody does play into the issue of move-aways. However, a discussion of this issue is outside the scope of this information and you should contact Yelman & Associates or another attorney of your choosing to discuss this issue in greater detail.

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  Father’s rights?
 

Fathers do have rights when it comes to visitation and custody of children, and a Father should never assume that they will be denied custody and/or visitation with their children. The Court evaluates these issues based on the “best interests of the child.” If it is determined that it is in the best interests of the children to be with Father, then the Court will make that award. At a minimum, with two good parents, it is generally agreed that quality time with both parents is in the child’s best interests.

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  Parenting plans?
 

Developing a parenting plan can be difficult, but can help to avoid conflict in the future. When developing a plan either as part of an uncontested divorce or in a contested divorce, attempt to account for the following issues:

  1. The actual time each parent’s custody times begin and end. For example if one parent has alternate weekends, state that the visitation begins on Friday after school and ends on Sunday at 5:00 p.m. This way each party can plan their schedules around the pick-up and drop-off times without having to coordinate every week.
  2. You may wish to determine who is responsible for picking up the child and who is responsible for dropping the child off after the custody time is over. Typically, the receiving parent provides the transportation for visitation.
  3. Decide how you want to set up a parenting plan for major holidays, religious holidays and all school vacations. This can be a major point of contention for many parents and should not be left to be decided every year. Some options are to alternate holidays each year or to divide the holidays with one parent having the first half and the other parent the second half.
  4. Provide that each parent will have the child on each parent’s birthdays, and on their respective Mother’s and Father’s day holidays.

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  Family court services in San Diego County?

 

If you are in a contested divorce in San Diego, before any interim hearing on custody or visitation, you will be required to meet with Family Court Services to attempt to come to an agreement regarding a parenting plan with the other party. Attorneys are not present at these meetings, just the parties. If a temporary restraining order has been issued by the Court then the parties may be seen separately. Otherwise, the parties meet together with a mediator in order to attempt to create an acceptable parenting plan.

If you are able to reach an agreement on the interim parenting plan, then that plan should be made an order of the Court at your court hearing. If you are not able to reach an agreement regarding an interim parenting plan, then the mediator you meet with at Family Court Services will make a recommendation to the Court that in many instances is followed by the Court. As such, this is an important meeting and should not be taken lightly.

If you are involved in a contested dissolution in which custody or visitation is in issue, we advise you to seek the advise of counsel, either from Yelman & Associates or another attorney of your choosing, to advise you before you take any legal action to commence a divorce.

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  Can custody or visitation be modified?
 

Visitation schedules and custody arrangements can be modified at any time if the Court finds that it is in the best interests of the child. Typically, you need to show that there has been some change of circumstances sufficient to warrant a change in custody and/or visitation. This requirement stops parties from filing for a modification just because they are not happy with the previous order and nothing has changed to warrant new orders. Please, however, consult with an attorney to determine if you have sufficient basis in which to request a modification from the Court.

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  What is grandparent visitation?
 

Grandparents may have rights regarding visitation with children and these rights are protected. If the Court should determine that grandparent visitation is in the best interests of the child then visitation may be awarded, even over objection of one parent and possibly in very limited circumstances over the objection of both parents. Please seek advise of counsel on your specific situation.

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  What is stepparent visitation?
 

If you have legally adopted a child, then the traditional rights of a mother and father apply to you and custody, visitation or support can be awarded.

If you are one party to the dissolution to be filed in California and desire to have visitation with your spouse’s children from a relationship prior to or outside your marriage then you have standing to request visitation with the Court and may be able to obtain stepparent visitation. If the Court finds it legally appropriate, the Court has the authority to award visitation, even over the objection of your spouse if in the best interests of the children.

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