There are two (2) kinds of custody: legal custody and physical custody. Legal custody has to do with all of the major health, education and welfare decisions pertaining to your children. Physical custody deals with where and with whom your child will be living subject to the visitation rights of the other parent.
The most common order is that you and the other parent enjoy joint legal custody of your children. This means that while either parent may act alone, both parents jointly share the responsibilities and decisions regarding the child’s health, education and welfare. As it is the court’s preference that both parents jointly share in these responsibilities, sometimes such an order is not feasible. For example, if one of the parents has abandoned the child; has been incarcerated; has been deployed for long term out of country military assignment; has a mental disorder which would interfere with communication and/or making such decisions; or has committed an act of domestic violence upon the child and/or the other parent. In these instances, it would be extremely difficult for the parents to share joint legal custody of a child and hence the court would make an order of primary legal custody to the non offending or non absent parent.
As regards physical custody, different counties have different approaches. For example, in Riverside County, the court will order joint physical custody even when one parent has substantially more time with the child than the other parent. In San Bernardino County, the court makes custody orders based more on the relative time share with the child. So, in Riverside County, a parent with an alternate weekend visitation schedule, will still have an order of joint physical custody but the court will clarify by ordering that the parent with the higher percentage of time with the child be deemed the primary parent for school enrollment purposes or that that parent’s home is the child’s primary residence, etc.
The court begins with the premise that it is in the child’s best interest to be with both parents as much as possible. So, when we discuss a custody plan we look at what has been the share plan during the marriage, since separation, and at the present taking into consideration the work schedules of the parties, the school schedules of the children, the location of the parties relative to the schools, any special needs of the children, any special problems with the parents, etc. If custody is in dispute, the court, in determining with which parent to place the child, will look for the parent that is most reasonable, most flexible, most willing to share the children with the other parent, most likely to reinforce the other parent in the eyes of the children, and most willing to ensure continued contact with the other parent.
Before there can be anything other than emergency custody orders, the parties must mediate with the court mediator. No attorneys are allowed at mediation so it is very important that your thoughts are organized and that you are prepared for mediation. The mediator will try to help you and your spouse settle your custody and visitation issues, but if there is no agreement, then the mediator will write a recommendation to the court as to what custody/visitation arrangement that mediator believes will best serve your children. At the court hearing, the court will rely on the declarations of the parties, exhibits submitted, arguments of the parties and counsel at the time of the hearing and the stated recommendations of the mediator.
If there continues to be a custody dispute, the court may order a Family Code §3111 custody evaluation or a more in depth evaluation and analysis pursuant to Evidence Code §730. These evaluations are most helpful in assisting the court in deciding the issue of custody and often the findings and recommendations of these evaluators often assist the parties in coming to a full and final settlement of their custody dispute.
If one of the parents wants to move with the children a substantial distance from the other parent, then typically custody is again in dispute and then typically an Evidence Code §730 Evaluation is conducted. The relevant factors to be considered in a move away request include the existing time share of the parents, the reasons or motives behind the move away request, the best interests of the children, etc. Move away disputes can be lengthy, costly, complex and heavily litigated. The moving party has a constitutional right to move wherever he or she wants. The question is whether or not the children are also going to move. If the non moving parent has enjoyed a high time share with the kids for a substantial period (better than 40% on the average) and if that parent is very involved in the school, activities of the children, then the argument to keep the children in their current environment gets stronger and stronger. If the moving parent is doing so for the purpose of keeping the other parent away from the children or to interfere with that parent’s custody/visitation rights, then the children will not be moving away. Again, the questions as regards best interest and detriment come into play.
If you need an experienced family law attorney or divorce attorney to assist you with your child custody matter and you live in or are located in Riverside County then call CATHERINE A. VINCENT, Attorney at Law today for a free phone consultation!