If you know a couple definitions and a concept you should be able to stay out of divorce court.
Before you start the search for a good child custody lawyer please be aware of the types custody and why they will be less important after you read this.
Child Custody
Parents often confuse custody with parenting time.
Parenting time is the time that you spend with your kids. It can be scheduled through a parenting plan. These plans can be as simple or complex as you need.
Custody is a legal term that determines who has the authority to make decision for the child(ren) or if a parent’s time with a child should be restricted. The California Family Code states a preference that custody should be joint unless a parent can demonstrate why it shouldn’t be.
Most parents have joint legal and physical custody.
Let’s look at these two types of custody.
Legal Custody
Legal custody determines who has the right and responsibility to make decisions about a child’s health, education and welfare, California Family Code §3003.
Joint legal custody means both both parents make these decisions together. Sole legal custody means that only one person has this authority.
Legal custody also has an impact on getting a child(ren)’s passport. In order to get a child’s passport, both parents must sign the passport application.
This is known as the dual signature rule, but there are exceptions.
If you include a certified copy of your divorce decree which indicates you have sole legal custody you should be able to get a passport without the second signature.
Most parents have joint legal custody. This is the preferred option in California.
Physical Custody
“Joint physical custody” means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, California Family Code §3004.
There is a policy preference in California for joint physical custody. This is based on the belief that it is in the child’s best interest to have continuous and ongoing contact with both parents.
But, joint physical custody does not mean that the child(ren) will divide their time equally between parents. Rather, parents will have the authority to create a parenting plan that divides their child(ren)’s time in a manner “to assure a child of frequent and continuing contact with both parents.”
An equal time split usually doesn’t give either parent exactly what they want. Because, not all the hours in a child’s week are the same. This becomes more true as they get older.
For instance.
A young child’s story time rapidly morphs into homework time for the slightly older child. As you know, this time is very different. And depending on the parent, time at a weekend soccer games might be the best part of the week or the least interesting.
Therefore,
It is not quantity of time but rather how the time is spent that is important.
“Sole physical custody” means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation, California Family Code §3007.
Sole physical custody is usually awarded when family court finds that a parent:
Has a substance abuse problem,
Is unlikely to foster a co-parenting relationship,
There was domestic violence, or
The court finds that joint physical custody is not in the child’s best interest.
If sole custody is awarded, and it usually isn’t without a hearing, a parenting plan will still be necessary.
Parenting Plans
Strictly speaking, a parenting plan does not need to be attached to your divorce paperwork for the court to issue your final divorce decree. However, a plan will make your life better because:
Parenting plans create a schedule and predictability in the child(ren)’s life,
They minimize the need for communication and debate between parents, and
Because behavior can be compared to a written plan, trust can accumulate,
The plan can be as simple or complex as necessary.
Parenting time can be divided by weeks, weekends or days. The developmental stage of the child and the distance between the parent’s homes can serve as the primary considerations.
Often parenting plans go beyond scheduling parenting time. Some of the things that they are used for is to create:
Low stress exchanges,
A system to schedule vacations, or
Determine which sets off clothes belong in each parent’s home.
Changing A Custody Order
If custody needs to be changed, for example from joint physical to sole physical custody, after a final order has been issued you will need to go to court and demonstrate to a family court judge that there has a been a substantial change in circumstance and it is in the best interest of the child to make a change.
The changes in circumstances must be large and permanent.
For example:
A change in the financial circumstances of each parent,
Deliberate acts by a parent to prevent child(ren) from spending time with other parent,
A change in the physical and mental heath of the parents,
A change in a parent’s ability to care for the child(ren),
A long term change in a work schedule.
If you need to change a custody order you’ll need to hire a good attorney family law attorney experienced in litigation. If money is a serious issue, ask if they are willing to work on a “limited scope.”
Changing a Parenting Plan
It is a near certainty that you will need to modify your parenting plan.
As your child(ren) get older their developmental needs change because:
The amount of time they can spend away from either parent grows,
Parenting styles that didn’t mesh with young kids maybe fine for older kids,
The pull of school and friends will change the amount of time child(ren) have for parents.
Modifying a parenting plan is relatively simple. All you need to do is:
Write down the new plan,
Both parents must sign the new plan and
Submit the new parenting plan to court.
It is as simple as that.
There is one more very important definition.
Best Interest of the Child
This is the basis of many family court decisions.
“Best interest of the child,” is a phrase that everyone believes they understand but it can be slippery.
The child’s best interest is - “the child’s need for continuity and stability preserving established patterns of care and emotional bonds,” California Family Code §3040(d)
Very reasonable. But what exactly does that mean? It is somewhat flexible because kids and families are all pretty different.
To find “the best interest of the child” family court judges use a set of unweighted factors, which are:
Will one parent be more likely to allow frequent and continuing contact with the noncustodial parent?
How old are the child(ren)?
Family court will consider a child’s wishes,
If the child is 12 they may address the court, if the child wants to testify,
If the child is 14 they must be heard by the court, if the child wants to testify,
Will one home provide a more wholesome and stable environment?
Has one parent provided more care for the child?
Was there domestic violence in the home?
Does either parent have drug or alcohol problem?
A parent’s mental and physical health are considered,
Except, disability is not grounds to deny custody,
What opportunities will be available to the child such as access education and religious services?
Does either parent have a criminal history?
Is there a strong support system with extended family and friends?
As you can imagine, these are difficult factors to establish. Some of them require expert testimony and others credible witnesses.
If your case requires a family court judge to make a decision about the best interest of your child, finding a good divorce lawyer is the way to go.
Last Thoughts on Parenting Plans
Only family court has the authority to change custody between joint and sole custody.
If joint legal and joint physical custody is workable for you, spend your time creating the best parenting plan possible. And realize it will be need to be adjusted at some point in the future.
The parenting plan is what you will live with on a day to day basis.
I have a free eBook on my website with several sample plans and information on children’s developmental stages so you can make your plan with as much information as possible.
If you need help or if negotiating with your spouse is difficult please call.
It shouldn’t take long, you’ll have a workable agreement and you’ll be able to continue on with your life.
I am happy to help.
The information provided in this post is for general information purposes only and should not be construed as legal advice. You should not act or rely upon this information without seeking formal professional counsel. The information provided in this post is not intended to create an attorney-client relationship.