Child Custody and Visitation
Fighting for the best possible arrangements In child custody cases
Child custody and visitation cases matter. We can help you protect your rights and obtain the best possible arrangements for yourself and your children if you have custody or visitation concerns related to separation or divorce, or to children born outside a marriage.
Types of custody cases
What exactly will legal and physical custody mean in my case, whether it is sole, joint or a combination thereof? What is the difference between having legal custody and actually being able to spend enough time with my kids?
Relocation
Am I going to be allowed to move away with my child? What if my former spouse wants to move? If we can't agree on relocation arrangements, who decides, and how?
Agreeing on custody and visitation out of court
Can we come up with our own agreement? Will the court honor our agreement? If we cannot come up with an agreement, what criteria will the court use to determine what is best for our child?
Parenting plans
Do these differ for children of different ages? Should we keep the kids together or should we separate them? Who decides on this and how?
Child Custody and visitation issues can be very difficult for parents to work through. Having an understanding of the law going in can help tremendously. The following are some important concepts and procedures that every parent should understand prior to going down the path of child custody litigation.
Physical Custody vs. Legal Custody
There are two types of child custody in San Diego Divorce and Paternity cases: legal custody and physical custody.
Legal custody orders of children address decision making power. The party with legal custody has the legal power to make decisions regarding the health, education, safety and the general welfare of the children.
Physical custody orders of children in address the day-to-day physical location of the children and orders specific scheduling for co-parenting. Physical custody orders can be the most challenging and highly litigated area of a paternity, legal separation and divorce.
Family Court Services Mediation
When you ask a family court for court orders for child custody or visitation, the San Diego Family Court’s Local Rules require that the parents of the children attend Family Court Services Mediation. Do not be confused by the term ‘Mediation’ because it is as much an interview and evaluation, as it is a Mediation. At the Family Court Services appointment, the parents may present information concerning the custody of the children to a court appointed mediator. The mediator will issue a Report and Recommendation to both parents, the attorneys, and to the family court judge. The Report and Recommendation takes into consideration all information obtained during the interview with the parents, review of the file, and contact with other third parties, in certain cases, and includes a recommended parenting plan. Each parent is entitled to receive a copy of the recommendation to review and respond to the information included in the report. Success at FCS mediation is crucial to the success of your child custody case as family court judges place a great deal of weight of the FCS mediator’s recommendation. Preparation by your family law attorney, or other professional, in some cases, is crucial.
A Parenting Plan
Parents going through a legal separation, divorce or unmarried parents looking to separate, can be are faced with the often difficult task of developing a co-parenting relationship that works best for the children involved. The best parenting plans and child custody arrangements are those that ensure the children have access to both parents on a regular basis.
In certain complex child custody cases, high conflict child custody cases, and cases where there are allegations of drug abuse, alcohol abuse, domestic violence, or mental illness, one parent may seek the intervention of a professional that specialized in addressing these issues as they relate to child custody and visitation. Sometimes that is private mediation. Any party seeking a private custody evaluation must have an agreement to do so from the other parent or that party must request the court order the private evaluation. Private mediation may be with or without the professional recommendation.
When a private custody evaluator conducts a professional recommendation, that is called a “730 Evaluation.” This evaluation is given to the court after the evaluator has met with both parents, the children and, has either interviewed or met with other third parties involved with the family. The evaluation is considered to be admissible evidence at the child custody hearing by agreement or court order, and holds a significant deal of weight with the family court judge. Private child custody evaluations can be extremely expensive, but can be worth the extra money in certain circumstances.
Child Custody Modification
Until a child emancipates by turning 18 years of age, or graduating from high school, child custody is always an issue. With few exceptions, once a child custody order is made, in order to request a modification of an order already in place, the requesting party has the burden to prove that there has been a change in the circumstances of the parents or children that would warrant a change to the court order for child custody.
A change in circumstances could be a significant change of a schedule, a change of location of one or both of the parents, or any number of significant changes effecting either parents’ ability to follow the old custody order.
Ex Parte Child Custody Orders
Generally, the Family Court will not order emergency orders relating to child custody unless there is a showing of immediate harm to a child, sexual abuse or the threat of a child being removed from the State of California without the written consent of the other parent. If these is a legitimate threat under any of these basis, then immediately contact the L:aw Office of Alexandra McIntosh at (760) 753-5357.
With regard to custody, in general, California law gives no preference to one parent of a child based on that parent’s gender, age, wealth, disability, race, creed, religion or employment status. State law generally says that a court shall award child custody jointly, or if to one parent, it should be to the parent most willing to share the child with the other parent. Serving the best interest of a child is the guiding principle in all custody decisions.
Every situation is different. Developing your case will involve the presentation of facts that show that you properly nourish, nurture and care for your child while generously providing continuing contact with the other parent. If domestic violence is involved, these factors may not apply, and a court’s discretion in awarding custody to a person convicted of domestic violence is extremely limited.
