Custody & Visitation

Child Custody and Visitation

At the Law Offices of Stella Espinoza Browne we understand that when a marriage is ending and a family is in crisis, parents have much to consider. Generally, the most important issue pertains to child custody. We have helped hundreds of families struggling with issues that affect the entire family during the transitional period of divorce and separation.

An Overview of Child Custody and Visitation

Child Custody and Visitation (parenting time) can, and should be, tailored to each families needs and particular circumstances. Parenting plans should take into account the ages and needs of the children, as well as each parent’s ability to provide appropriate care and supervision during their parenting time.

There are two general types of custody: Legal Custody and Physical Custody.

Legal Custody

“Legal Custody” gives a parent the right to make long-term decisions about the raising of a child and key aspects of the child’s welfare - including the child’s education, medical care, dental care, education, and religious instruction.

In most custody cases, Legal Custody is awarded jointly to both parents, unless it is shown that one parent is somehow unfit, or is incapable of making decisions about the child’s upbringing .

Physical Custody

“Physical Custody” refers to where a child will primarily live when parents divorce or separate. The parent with physical custody has the right to have his/her child live with them. The parent who has physical custody will make decisions regarding their child’s welfare and well-being on a daily basis. The parent with primary physical custody is considered the “custodial parent.”

Common Custody Solutions

Physical and legal custody can be decided in a variety of ways. No one type of custody/visitation or parenting plan is best for all families.

¨ Sole Custody: “Sole Custody” awards one parent the right to have the child live with him/her. That parent is known as the “custodial parent” and the other parent is known as the “non-custodial parent”. Courts do not prefer sole custody and generally only award sole custody when there is a history of abuse and neglect. In some cases, a non-custodial parent may be restricted to supervised visitation with either a mutually agreed upon or court-approved supervisor.

¨ Joint Custody: “Joint Custody” awards both parents the rights and responsibilities for major decision-making and/or physical control and custody of the children. Parents with joint physical custody usually share legal custody, but joint legal custody does not necessarily imply joint physical custody. Parents need to be able to work together in the rearing of their children when they have joint legal custody.

¨ Split Custody: “Split Custody” refers to where each parent takes custody of a different child. This is not common, and court do not commonly award split custody.

¨ Birds Nest Custody: This arrangement allows children to remain in the pre-divorce family home while parents take turns moving in and out on a pre-set schedule. This is not a common arrangement.

Common Factors Considered In Child Custody Disputes

In general, a court will take into account the “best interest of the child,” when determining which parent is awarded custody. Most courts do not inherently favor the mother over the father anymore. In considering the “best interest of the child” the Court will take into account several factors, including:

¨ Age of the child

¨ Mental and physical health of the child

¨ The lifestyle and habits of the parents

¨ The love and emotional ties between child and parent

¨ The mental and physical health of the parent

¨ The child’s established living pattern

¨ The child’s preference (depending on the child’s age)

¨ The quality of available schools

¨ The ability of the parent to provide food, water, and shelter

¨ The reports provided my and Court-appointed child custody evaluator and/or mediator

Mandatory Mediation

California requires that both parents participate in mediation in all contested custody cases prior to a litigated hearing. In other words, the parties must first attempt to sort out their child custody and visitation disagreements through mediation before a Superior Court judge or commissioner will hear the dispute.

Child custody mediation is a form of alternative dispute resolution and is an opportunity for parents to sort out their disagreements. Mediation is scheduled by appointment with the appropriate County Family Court Services mediation department or Concilliation Courts. Most courts require the parties to attend a mandatory Orientation Session prior to the actual mediation appointment. Both parents are generally asked to complete a child custody mediation questionnaire. This information will help the mediator learn more about the child custody issues being disputed prior to the mediation. Generally, the parents will meet together, along with the mediator, in an attempt to resolve their disputes.

Mandatory mediation will only address issues regarding child custody and visitation or parenting plans. No financial issues will be discussed. During mediation, parents may resolve all, some, or none of the child custody issues being disputed. In Los Angeles county, mediation is confidential, and the mediator will not report to the court what was discussed in mediation. In San Bernardino and Riverside Counties, the mediator will prepare a report about what was discussed in mediation and the mediator will give the court his/her recommendations. Mediators will report to the court a signed mutual agreement which has been mutually accepted by both parties.

Child Custody Evaluation

If the parties are unable to reach an agreement regarding custody, many courts will order a custody evaluation prior to trial. A court-appointed psychologist will be assigned to interview both parents and the children, to observe the children, and conduct psychological testing of the parents and the children. Child custody evaluations can take four to twelve weeks to conclude. The costs of a child custody evaluation can be high and must be paid by the parties.

Child Custody Modifications

After custody has been established through agreement or court order, either parent may seek court involvement to modify the established arrangement. To support a modification request, the parent seeking the modification must generally show a substantial change in circumstances. Such changes in circumstances include, but are not limited to:

¨ Change in residence of one of the parents

¨ The desire of an older child to increase or decrease visitation

¨ Evidence of child abuse or child neglect

¨ Alteration of the child’s school schedule

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Disclaimer: The materials contained in this web site have been prepared by the Law Offices of Stella Espinoza Browne for informational purposes only. The information contained herein is general in nature and may not have application to your particular factual or legal circumstances. These materials do not constitute legal advice or opinions and should not be relied upon as such. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. Visitors to this website should not act upon any information in this web site without seeking professional counsel. The contents of this website may be an "Advertisement" as defined by The Rules of Professional Conduct and California Business and Professions Code. All rights reserved.

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