California law directs that the children involved in a divorce should have “frequent and continuing” contacts with both parents. As a practical matter, this means that unless you can prove that your children will be harmed by visiting with their other parent, and with all other things being equal, the court will presume that it is in the best interest of your children that you and your ex should both have an equal amount of time with your children.
The best and most flexible child custody and schedules are typically decided by the parents themselves. In Orange County, California – like in many other jurisdictions – if parents cannot decide on a visitation schedule on their own, they will be required to go through a mediation process before they are allowed to go before a judge. If the parents still cannot work out a visitation schedule they can both live with, the court will decide for them, which usually results in an outcome that one or both of the parties is unhappy with.
When setting up a negotiated visitation schedule, it is helpful to remember that whatever works best for your family is usually going to be agreeable to the court. Do you both want Junior to live with Dad except for when he’s with Mom on Mondays, Wednesdays, and Fridays every third week? That may be confusing, but if that works for your family, the court will sign off on it. You can alternate weeks or have the kids go to the other parent every other weekend. Creativity is allowed and even encouraged so long as it’s in “the best interests of your children”. That is the only thing the judge will be worried about. Frankly, the courts don’t care about mom or dad. Most judges will contend that Family Law courthouses exist to make certain children are safe and well taken care of.
If it would be potentially harmful for your children to be alone with your ex, there are options beyond cutting off their relationship entirely. Short-term or long-term, you can establish a supervised visitation structure where another trusted adult is required to be present during the visits. These supervised visits can be as short or as long as you (or the judge, if you and your ex can’t agree) deem appropriate and safe.
In many instances, children will express a strong preference in visitation and custody. Some children simply want a voice in how often they visit the non-custodial parent, while others demand to live full time with one or the other. It is never a good idea to have these conversations with your children. It empowers them in a way that the courts despise. When you ask a child which parent they want to live with, you are forcing that child to choose between their parents. This necessarily harms the child psychologically.
That being said, at some time or another as your children grow, they will begin to express, without your input or inquiry, what they prefer with regard to custodial time and visitations. California law says that when a child is 14, their “preference” shall be considered by the court. That does not mean they get to choose who they live with, it simply means the judge must consider their preference. Again, you never want to initiate these conversations, and you will want to downplay them if your child brings the issue up. But, be cognizant of their wishes and try to work with the other parent (co-parent) to do what is best for your children, and your entire family unit.
When children are involved in a divorce, the court system is only concerned that their health and well-being is safeguarded. Because children are usually best served when they enjoy a close relationship with both parents, courts seek to foster those mutual bonds as much as possible.
If you have children and are contemplating divorce, the law firm of Pinkham and Associates would be pleased to provide some initial advice, to help you develop a visitation plan, and to help you with all other aspects of your divorce. Contact us today for a free consultation.
When parents talk about custody, whether they know it or not, they’re talking about two different things. Physical custody and legal custody.
Legal custody is the right of parents to make decisions with regard to the child’s health, education, and welfare. Just like physical custody, the parties can either have joint or sole legal custody. However, sole legal custody is actually quite rare. To get sole legal custody, you usually need to show that there would be some detriment to the children for both parents to share the serious decision-making in the child’s life, or that the other parent is incarcerated.
As an example of a legal custody decision, if a parent decides they want to change the school of the parties’ children; that is an educational decision that must be made by both parents if they share joint legal custody. If one parent has sole legal custody, they can choose the child’s school, religion, sign for them to get a driver’s license, etc. However if the parents share joint legal custody, all these decisions are to be made together.
Note: Parents can share joint legal custody yet one parent may still only have 20% visitation time with the children. That means, that you can share joint legal custody but one parent can have sole physical custody. There are also occasions where the court could order joint physical custody yet order sole legal custody to one parent. Again, this is quite rare, but growing in popularity by the judges. Recently, we’ve seen a trend in cases where the parents constantly fight and because of that fighting they cannot come to an agreement on important issues regarding the children. In a case such as this, in modern times, the court may very well give one parent sole legal custody over all issues, or possibly only on a specific issue. I was involved in a case like this recently. In our case, the parents simply could not get along long enough to make decisions with regard to the schooling for the child. In that case I argued successfully that my client should have sole decision-making over the education decisions for the child. So, in that case, the parties share joint physical custody but my client was awarded sole legal custody for the decision-making for education and school issues.
Physical custody is where the children live, which parent they live with. It is very important to understand one theory in physical custody. It does not matter what language is in a court order or a court judgment. For example, you can write in a judgment that the parties have joint physical custody, but if the actual timeshare is high enough for one parent, then they will have sole physical custody and the other parties’ time is considered visitation. Why is this important? Because if one parent has sole physical custody, they have a presumed right to move away, sometimes great distances, from the other parent. Specifically, “Sole Physical Custody” means that the lower timeshare parent has less than 28% custodial time with the children. 28% timeshare with the children is the magical number. If you have 28% timeshare or more, you have “Joint Physical Custody” of the children, no matter what the court order says.
Also, a very important theory with regard to physical custody is that the court is only interested in the parties’ ”de facto” timeshare. That is to say, that a court is only interested in the actual timeshare that the parents have in real life. Again, it does not matter what your court order say, it only matters what you’re actually exercising in real life. For example, you could have court orders that say joint legal and joint physical custody. However, if the lower custodial timeshare parent is only exercising one weekend a month and shared holidays, that is clearly less than 28% timeshare and even if there court order says joint physical custody, they only have visitation and the other parent has a presumed right to move away with the children, among other rights.