Child Custody And Visitation
While some parties are agreeable on what is best for the children after a divorce, this is not always the case. Sometimes the best interests of the children is overshadowed by other issues related to the divorce.
While California law seeks to protect children who are caught in the middle of a divorce, it is in the best interest of you and your children to consult with knowledgeable Solana Beach child custody lawyers about your case. At Ratzer|Dobis, protecting your children’s rights and well-being is our top priority. We are a well-established law firm with many years of experience in family law.
We work hard to get you results quickly through mediation. We are also strong litigators who will fight aggressively for your rights in court if it comes to that. Our goal is to provide high end legal representation to get you and your family the best outcome possible for your divorce.
Child Custody Procedures in California
The primary concept that child custody determination centers around in California is a parenting plan. A parenting agreement is usually negotiated between parents and their child custody attorneys outside of the courts. While each plan is unique to the family involved, it generally includes:
- Who has physical custody of the child
- What the child visitation schedule will look like (including holidays, birthdays and vacations)
- Who has legal custody and who makes decisions impacting the child’s welfare and upbringing
- How contact with other family members and third parties will be handled
- What to do in the event of a dispute or change to an agreement
While it’s possible for two parties to mutually agree upon custody terms, determining child custody and visitation can also be complicated — especially if the two parents cannot reach an agreement. To win battles involving visitation issues, you need an experienced Solana Beach child custody lawyer on your side.
Understanding the Types of Custody
Most people have a general idea of what child custody is, but they may not understand all of the terms associated with the topic.
This type of custody is what most people think about when they hear “child custody.” Physical custody of a child has to do with where the child will actually live.
Legal custody revolves around which parent will have decision making power over the legal issues in that child’s life. This can include decisions related to the child’s religious upbringing, medical decisions, educational decisions and more.
Sole or Joint Custody
The term “sole custody” is used to describe a situation in which only one parent has custody over a child. “Joint custody” is also called shared custody and refers to a situation in which both parents have custody over a child. Depending on the type of custody (physical or legal), there may be a combination of sole or joint custody of a child.
For example, one parent may have sole physical custody over a child while both parents share legal custody. There could be a situation where one parent has sole legal custody of a child while both parents share joint physical custody. When determining a combination of types of custody, the court will work to determine what is in the child’s best interests.
What Is a Custodial Parent?
After the courts in California issue a custody agreement, one parent will become the custodial parent and the other will be the noncustodial parent. The custodial parent has sole or primary legal and/or physical custody of the child based on the court order.
The noncustodial parent may still have parental responsibilities, joint custody or child visitation rights, but he or she will not have primary custody. Understanding the difference between a custodial parent and noncustodial parent could help you comprehend and protect your rights.
When both parents share custody of a child after a divorce, it is called a joint custody agreement. A judge can create many different versions of a custody order. For example, both parents could share legal and physical custody of a child, or the courts may grant physical custody to both parents but legal custody only to one. Your parental rights after divorce will depend on the specifics of the court order.
If you have no parenting time or rights after divorce, the other parent will be the custodial parent. If you and your ex-spouse share custody, the parent with primary custody will also be the custodial parent. In general, the custodial parent will be the person who receives child support payments in a divorce case. Since the custodial parent has the child for the majority of the time, his or her childcare costs will be more significant than the noncustodial parent.
With this in mind, the courts in California will typically award child support to the custodial parent. If you are the noncustodial parent, expect to pay your ex-spouse a monthly amount in child support until the child is 18 (or 19, in some circumstances).
Can a Custodial Parent Deny Visitation?
Just because one parent is the custodial parent does not give him or her the legal right to decide if and when you can visit your child. It is against the law for a custodial parent to deny visitation if you have visitation rights via a court order.
Custody, visitation and parenting time are not decisions a custodial parent has the right to make. Only a judge can issue these child custody visitation orders. Your ex-spouse cannot deny visitation, for example, if you two are fighting or if you miss a child support payment. Child support and child custody are two separate matters that are not connected unless a judge decides otherwise. It is against the law for a custodial parent to deny court-ordered visitation.
If your ex-spouse is trying to infringe upon the child custody or visitation rights a judge granted you, speak out. Seek a legal remedy by reporting your ex-spouse to the family court that issued your original custody agreement. The courts may hold your ex-spouse in contempt for ignoring a court order. This could mean your spouse has to pay a fine or even spend time in jail for illegally breaching your visitation rights as a parent. The only time a custodial parent could deny visitation is if that parent went to court and won a modification request.
If you did something that could take away your right to visitation, such as committing a crime, your spouse could go to a judge to request a custody modification that takes away your right to visitation. Common reasons to deny visitation are child abuse, drug or alcohol abuse, a new partner with a criminal record, failure to pay child support, and the child’s wishes (if old enough). If a judge grants a modification request, the custodial parent then has the court’s permission to lawfully deny visitation. This is the only time a custodial parent could deny visitation.
Coming up With a Visitation Plan
For the parent that does not have physical custody of their child, a fair visitation plan will need to be created. There are various reasons why one parent may not have physical custody of their child, but that does not mean they should be excluded from the child’s life.
Court Ordered Mediation
Before you will be heard by a Judge on child centered issues you are required to participate in a mediation process. The purpose of mediation in San Diego County is to put your family in front of a mediator who will gather background information on your family that will assist your Judge if your Judge is required to make orders in your case.
In San Diego County you CANNOT go to this mediation unprepared. Why? Because if you do not reach visitation arrangements in your mediation the mediator is tasked with producing a report to your Judge that includes the Mediator’s recommendations on how the Judge should decide your disagreements.
Judges rely on these reports and recommendations and for that reason you CANNOT participate in this process unprepared. Contact our Solana Beach mediation attorneys to help navigate through this process.
Federal Child Custody Issues
Child custody and family law cases in California are often complex, but sometimes these child custody cases cross state lines. When this happens, the custody agreements must also consider federal law. The Uniform Child Custody Jurisdiction and Enforcement Act is set up to encourage legal cooperation between states. California state law is compliant with these federal laws.
Are There Situations in Which a Parent May Be Denied Custody?
The state of California recognizes that it is usually best when both parents remain a part of their child’s life, regardless of the relationship that exists between the parents. Disagreements between the parents are usually not reason enough for either parent to be denied visitation rights. However, there may be certain situations in which custody and visitation are not recommended for one of the parents. This could be because:
- There are allegations or proof of child abuse that has occurred
- There are allegations or proof of domestic abuse
- A parent is struggling with alcohol or drug addiction
- There are continual legal problems with one parent
- One parent does not have a steady home
The California family law court will take all of these factors, and more, into consideration when determining what is in the child’s best interest concerning custody and visitation.
Changing Custody and Visitation Agreements
In the aftermath of a separation or divorce, it is inevitable that the lives of both parents will change. When this happens, there maybe they need to make modifications to an existing custody or visitation agreement. Changes may be necessary for various reasons, including:
- One parent relocating
- A parent losing a home
- Allegations or instances of criminal activity
- Allegations or instances of physical abuse
- Allegations or instances of substance abuse
Parents should not make changes to custody agreements outside of the family court system, regardless of how amicable the relationship between the two parents may be. Any changes to custody must be petitioned within the family court system in California and agreed upon by a judge
What You Need to Do Now
Protecting your children in California or across state lines during and after your divorce is crucial. Experienced child visitation attorneys from the law offices of Ratzer|Dobis can help. Contact us online or call us directly at (858) 793-7700 to schedule a meeting with one of our dedicated Solana Beach family law attorneys. We are proud to serve clients throughout the San Diego County area.