Divorce and Family Law
Child Custody and Visitation
When it comes to matters of a marriage dissolution, the most critical and emotion-packed area, is that of child custody. Disputes often range on both sides and extended families and grandparents are often in the mix.
Regardless of how highly charged the issue, it is the Court who is customarily charged with determining what is in the best interest of the child. In any contest between two parents, the outcome is always determined by what is in the best interest of the child, whether primary residence is with the mother or father, and what contact the child should have with the non-primary custodial parent.
Both parties are encouraged to find a solution that is in the best interest of the child and the Court will generally ask to first consider the status quo. Both parties may establish times and methods of shared-parenting with the end result for the child's best interest. The Court will generally assume that the pattern of conduct and sharing entertained and practiced by the parents prior to filing for divorce is at least a valid starting point. Although the pattern previously established may not be perfect, and may need adjustment, the Court feels safe in adopting that plan because it is a plan which the parents have tacitly, if not expressly agreed upon.
Often times, for good or bad reasons, psychological evaluations and more in depth studies are asked to be conducted. In the case of a psychological evaluation the evaluator submits the parents and sometimes child(ren) to a series of psychological tests and clinical observations. The initial determination is to seek whether either parent suffers from any psychological dysfunction. The psychologist will also look into the history of the child(ren)'s life and the parenting plan that has existed over time, again, giving the most weight to the more recent effective parenting plan. Only if there is a valid reason and a substantial basis for dramatic change, will a psychologist recommend anything other than the more recent successful parenting plan.
In addition, the Superior Court provides a mandatory mediation service which assists all parents who have a dispute regarding custody and visitation. Attorneys are generally not allowed to be present during the custody and visitation mediation when conducted through the auspicious of the Superior Court. An attorney's involvement in the process is to assist the parent in becoming ready for the mediation appointment and focused on the best interest of the child(ren). An experienced attorney can be of great assistance in the preparation for the mediation conference. Yet, the attorney's true contribution will be in formalizing any agreements reached and/or litigating any dispute unresolved through the mediation process.
Can I get joint custody of my child(ren)?
California has a "joint custody" law that encourages judges to award joint "legal custody" to parents. This means that both parents have a right to make decisions concerning their child(ren), such as education, medical treatment and religious training. The court also has the power to award "physical custody" to one or both parents. Physical custody determines where the child actually lives, and it is most common for the child(ren) to spend most of their time with one parent. The parent who does not have primary physical custody is usually granted "secondary physical custody" or visitation rights.
It is most common for the non-custodial parent to have specified periods of time consisting of alternating weekends, one evening per night and one-half of the child(ren)'s school vacations. In some cases, the parents agree to "reasonable" secondary physical custody or visitation rights, which means that the parents agree on the times when the non-custodial parent will have the child(ren).
If I have custody of our child(ren), can I relocate with them to another metropolitan area?
In some cases, a judge will issue orders preventing either parent from changing the residence of the child(ren) from a specified geographical area. Locally, it is not uncommon for a judge to restrain the parents from removing the residence of the children from what are referred to as "the seven Southern California counties." Such orders are common where both parents have a considerable amount of time with the child(ren) and removing them from the metropolitan area would be disruptive to the child(ren) and their development.
Over the last ten years, courts in California have been dealing with the right of a custodial parent to move with the child(ren) to another metropolitan area or out of state. The California State Supreme Court recently decided a case that settled this controversy. Under the new rule, the custodial parent generally has the right to decide where the child(ren) are to live, as long as he/she is not moving simply to deny the other parent access to the child(ren).
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