CHILD
CUSTODY
Litigation involving issues of child custody can be extremely emotion
and stressful for most parents. If you are seeking a divorce or separation
and have children, you should always seek legal advice to learn about
your parental rights. This is true even if you have made an agreement
regarding
custody with your spouse. Many times, parents will reach a verbal agreement
regarding visitation; however, all agreements must be in writing and
filed with the court to protect your parental rights of visitation
and support.
In every case involving children, both legal custody and physical custody
of the child must be determined.
Legal custody of a child gives the parent the right and obligation
to make decisions about a child's upbringing. Decisions regarding schooling,
religion, medical and dental care, for example, are made by a parent
with legal custody. Many parents choose to share joint legal custody, giving
both
parents the right and obligation to make the important legal decisions
regarding their children.
Physical custody is the right of a parent to have a child live with
him or to have visitation. In California, a parent may request sole physical
custody or joint physical custody. The standard
for determining
physical custody is determined by what is in the "best interest of the
child." Joint physical custody is usually preferred absent evidence
of physical violence, drug or alcohol abuse or other behaviors or conditions
that would render the parent unfit.
Joint Custody usually means that the child will live with one parent
(or custodial parent) and the other parent (non-custodial parent) will have
a generous visitation
schedule. Joint custody has the advantages of assuring the children continuing
contact and involvement with both parents, and alleviating some of the responsibilities
of parenting for each parent.
Sole custody means that the custodial parent has sole physical custody and usually
sole legal custody of a child. Depending on the reasons for granting sole custody
to one parent, the non-custodial parent may or may not be given visitation. In
some cases where a parent is unfit or lacking in parental skills, the court may
order the unfit parent to attend parenting classes. In the event a parent has
lost custody of a child, reunification (through therapy, supervised visitation
or meeting the child in a comfortable setting) is recommended to reunite the
child and parent and establish a visitation plan.
For examples of custodial and visitation plans, click here.
Modification of Child Custody
Child custody may be modified by showing a "change of circumstance" in
the current custody arrangement. While every case is unique, common "changes
of circumstances" warranting a modification of child custody are physical
and/or emotional abuse, drug or alcohol abuse or mental illness on the part of
either parent. It is important to remember that any change in custody will effect
a change in child support.
In all custody and visitation cases, California law requires both parents to
attend court ordered mediation to discuss possible resolution of the custody
issues prior to a court hearing.
Court Ordered Mediation
Any time one parent is requesting the court to decide an issue involving child
custody, the court requires both parents to attend mediation with a court certified
therapist.
What to Expect from Mediation: Click here for more information regarding
mediation.