In the state of California, when spouses choose to divorce or physically separate, custody of any children can be shared by both or it can be granted to just one of the parents. The most ideal thing to do in terms of custody and visitation rights is for both parents to fully discuss the welfare of the children and come to an agreement. If there is such an agreement, the court will usually accept it. If custody has to be decided by the court, then the judge will take the children’s needs and other considerations into account in order to decide what is best for them and whom should get custody, but only after both parents have discussed their issues with a mediator provided by Family Court Services. The judge will also make a decision about visitation rights. A child custody lawyer In Orange County CA can help.
Types of custody orders in California
The term “child custody” pertains to the rights and obligations of parents when it comes to their children’s care, regardless of whether the parents are married or not. The state of California recognizes two main types of child custody: legal custody and physical custody. Although things are a lot better for everyone who is involved in any custody case when both parents come to an agreement, custody issues are quite common. If you find yourself in a situation where there are issues that you and your spouse cannot resolve, you should get advice from a family court attorney as soon as you can.
· Legal custody
Legal custody of the children grants one or both parents the right to make any necessary legal decisions about matters that can influence the children’s welfare. Legal custody can be “joint,” meaning that rights and responsibilities over the children are shared by both parents, or it can be “sole,” meaning that only one of the parents will have those rights and responsibilities. Parents who are granted legal custody will have to make choices for the children about schools, childcare, religious activities, mental health counseling, medical care, sports activities, vacation, travel, and others. Although both parents have a right to make choices in any of these areas if both are granted legal custody, there will be times when one parent will make a choice alone. However, it is essential to agree as much as possible in order to avoid problems and having to go back to court.
· Physical custody
Physical custody, as the name implies, has to do with where the children will live. “Sole” or “primary” physical custody is when the children live with one parent. In this case, the other parent will usually have visitation rights depending on various factors. “Joint” physical custody is when the children live with both parents at intervals. A common misconception with joint custody is that the children have to spend exactly half of their time with each parent, but that is quite hard to achieve because there are always complications, and in most cases, the children end up spending more time with one parent than with the other. The parent who has the children most of the time is often referred to as the “primary custodial parent.”
Visitation (which can also be referred to as “time-share”) outlines how the parents will share the children’s time amongst themselves. Visitation orders can vary greatly depending on what the court believes to be in the best interest of the children as well as other factors.
Visitation according to a schedule
Having a specific visitation plan is a good idea because it helps both parties to avoid any conflicts or confusion about who should have the children when. To this end, the court and the parents must come up with a visitation plan that fully details who will have the children at specific dates and times, that can include holidays and special days such as birthdays.
A reasonable visitation differs from a visitation according to schedule in that the dates and the times that each parent will spend with the children are not specified. It is expected that the parents will work that out between themselves. This type of visitation plan works if the parents get along but tends to fall apart when they do not.
A court will decide that visitation should be supervised by the other parent, another adult, or an agency if it feels that the children’s well-being can be compromised without this measure or in situations where the child has had little or no contact with the parent up to this point.
If the court decides that any contact at all with the parent who does not have physical custody would be harmful to the children there will be no visitation at all.
How the court decides custody and visitation
According to law, the most important thing that the court has to consider when deciding issues of custody and visitation is the welfare of the children. In order to do this, the court will take certain things into account such as the age of the children.
The children’s age and wishes
In the state of California, there was a time when the courts would not even consider what the children in a custody case wanted if they were minors, but times have changed. California Family Code 3042, subsections (a) through (d) state that if a child is old enough and is able to reason so as to have an intelligent preference about custody or visitation, the court has to give consideration and due weight to the child’s wishes. “Old enough” is usually considered to be 14 years of age although the court may choose to hear the wishes of a younger child if it feels that the child is mature enough. So it could be said that a child must be 14 in the state of California in order to decide which parent they want to live with, but age alone is not the determining factor.
A child’s preference is not the only thing the court considers
Even though the court must hear the children out if they are 14 or above, judges do not have to do what the children want them to do, but rather what is best for the children. There are often cases where children will make insincere statements for various reasons and judges know this. The court will consider everything at its disposal in order to do what is best for the children, including the children’s health, their emotional ties to both parents, the parents’ ability to provide for them, any violent history, school ties, and other factors.
A family court judge will not automatically give custody of the children to either parent. All available evidence must be considered in order to determine what is best for the children because in custody cases, the court’s utmost concern has to be the children’s well-being. A family law lawyer should always be consulted about these matters.