Child Custody and Visitation

When is Custody an issue?

Custody and visitation issues usually arise in the process of the divorce or, in the case of unmarried parents, in a paternity action. The court will make orders regarding both Physical Custody and Legal Custody.

What is Physical Custody?

Physical custody refers to with whom the child resides. Sole physical custody means that the child will reside with and under the supervision of, one parent, subject to the court’s power to order visitation. “Joint physical custody” means that each parent will have significant periods of physical custody.

What is Legal Custody?

“Sole legal custody” means that one parent will have the right and responsibility to make decisions regarding the health, education, and welfare of the child. “Joint legal custody” means that the parents will share that right and responsibility.

How is Custody Awarded?

Custody must be awarded according to the child’s best interests. The California legislature has declared that it is the public policy of the state to ensure minor children have frequent and continuing contact with both parents after their separation or dissolution. It is also the policy of the law to encourage parents to share the rights and responsibilities of child rearing, except when that contact would not be in the child’s best interests.

California law establishes no preference or presumption in contested proceedings for either sole or joint custody. However, the legislature has declared that is the public policy of the state to ensure that each child’s health, safety and welfare, expressly including freedom from child abuse and domestic violence in the child’s residence, be the court’s primary concern in determining the child’s best interests.

How does the court determine the child’s best interests?

There are a number of statutory factors the court considers in determining “best interest”. However, custody determinations may not be based on gender, race or sexual preference (except where detriment to the child is shown). Courts will typically require the parties to participate in mediation prior to litigating their custody dispute. Courts also may appoint an attorney for the child (minor’s counsel) or may order a child custody evaluation to be conducted.

What is custody mediation?

Mediations is a counseling session whereby a trained therapist attempts to help the parties reach an agreement regarding child custody and visitation. Some counties, such as San Bernardino and Ventura, are “recommending counties” which means if the parties do not reach an agreement, the mediator will make a custody recommendation to the court. In other counties, such as Los Angeles and Orange, the mediators may not make a recommendation to the court, and everything that is said in mediation remains confidential.

At what age does the child get to decide who he lives with?

When they become adults. While the court will consider a child’s preferences in making custody determinations, that preference is weighted in accordance with the child’s age and maturity. In some cases, the preferences of 10 and 13-year olds have been found to be very mature and were properly considered, while in other cases, courts have found disregarded preferences stated by teenagers because they were not supported by mature reasoning.