In my experience as a divorce lawyer in Southern California, no issue in a divorce is more stressful or emotional than child custody. If you are facing a divorce and have minor children, you should know that the legal system encourages both parents to maintain frequent contact with their children and to share the responsibility for raising them.
Here are answers to some questions divorce clients frequently ask me about child custody.
How do parents get a court order resolving custody and visitation issues regarding their children?
If the parents are married, either parent must first file an action for a dissolution of marriage or domestic partnership, legal separation, or nullity. If the parents are not married, either parent must file an action to establish the parental relationship (a paternity case).
What is the difference between legal custody and physical custody?
Legal custody refers to the rights and responsibilities of parents to make decisions relating to the health, education, and welfare of their children. Physical custody refers to the amount of time the children spend with each parent, where the children live, and how their day-to-day needs will be met.
Both parents may have joint legal custody or one parent may have sole legal custody. Joint legal custody means that both parents share in the right and responsibility to make decisions relating to the health, education and welfare of the children. Sole legal custody means that one parent has the right and responsibility to make decisions relating to the health, education and welfare of the children.
Similarly, both parents may have joint physical custody or one parent may have sole physical custody. Joint physical custody means that the children spend a significant amount of time with each parent, but the time does not have to be equal. Sole physical custody means that the children live primarily with one parent and have visitation with the other. Visitation is the designated time for the children to spend with the non-custodial parent.
What is a parenting plan?
A parenting plan is a document that describes how parents will divide the responsibilities of caring for their children. The typical parenting plan will set forth the legal and physical custody arrangements and will include a schedule of when the children will spend time with each parent, including weekends, holidays, birthdays, and vacations. Some parents prefer a brief plan that gives them flexibility to deal with issues as they arise. Others parents need a more specific plan that spells out the children’s schedules and the parents’ responsibilities in great detail.
Can parents agree on a parenting plan?
Parents can agree on a parenting plan. Agreeing on a parenting plan has many benefits. The parents can avoid a contested custody case and all the expense, delay, anger, and stress to the children that often goes along with it. The parents can tailor the plan so that it fits their schedules and the needs of their children, rather than having a judge who doesn’t know the family decide what the plan will be.
The plan will need to be approved by the judge, but the judge will usually approve a plan that both parents agree to. After the judge approves the plan, it is signed by both parents and the judge and filed with the court. It then becomes a court order.
What happens if parents cannot agree on a parenting plan?
If parents are unable on their own to agree on a parenting plan, a number of options are available.
Family Court Services (FCS) provides free mediation to help separating or divorcing parents reach an agreement. Mediation is provided by a court counselor in a private conference. Family Court Services assists families in the settlement of domestic controversies involving the welfare of children when an action is pending in Family Court. The FCS mediator will encourage both parents to cooperate and share the rights and responsibilities of parenting and try to help the parents develop a plan in which the children have frequent and continuing contact with both parents.
Other options to help parents reach an agreement on a parenting plan include:
- Face-to-face negotiations between the parents and their attorneys.
- Hiring a private mediator.
- Working with lawyers and a child specialist in a collaborative divorce process.
If these options are unsuccessful, the judge will decide what your parenting plan will be after a trial.
Your Next Step: Contact a divorce lawyer
This information is provided for general educational purposes only. It is not intended as specific legal advice for any particular case. For more specific information, please call me at (805) 777-7740 for a consultation. I am deeply committed to helping clients find constructive ways to resolve custody and other conflicts that arise in the course of divorce. At Zonder Family Law, my staff and I offer each client personalized service and attention.