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Custody

What happens to our children when we separate?
You can determine what happens. The best solution for the children is for the parents to reach an agreement on who will take care of them – and this is what the courts prefer. If you and the other parent agree on a parenting plan, we can attach a copy of the plan to the dissolution/legal separation papers. Your parenting plan can become a court order; in most cases, a judge will approve a custody and timesharing plan agreed upon by both parents. Click on the links (or keep reading) to learn about the differences between physical custody, legal custody and visitation.

Custody

There are two primary types of custody: Physical and Legal.

Legal Custody refers to the person having the rights and responsibilities to make important decisions about a child's health, education and welfare. Such decisions might include, for example, where the children will attend school or whether they should get braces on their teeth. Legal Custody can be "joint" or "sole":

Joint Legal Custody. This is where the court orders that the parents share legal custody of a child (i.e., they share the rights and responsibilities to make important decisions about the children's health, education and welfare).

Sole Legal Custody. This is where the court orders that only one parent has the right to make decisions related to the health, education and welfare of the children. Parents typically share joint legal custody, unless one of the following is true:

  • The parents are completely unable to make decisions together;
  • One parent is deemed unfit;
  • One parent is incapable of making decisions regarding the upbringing and general welfare of the child; or
  • It would be in the child's best interests for one parent to have sole legal custody.

Physical Custody refers to which parent or parents the children spend time living with on a regular basis. When deciding how custody should be divided and whether parents will have visitation rights, courts will first need to determine the child's best interests. For example, if a parent has a history of domestic violence or abuse, the judge may order that any and all visits with the child be supervised by an approved third party. In some extreme cases, the judge may find that it's in the child's best interest not to visit the abusive parent at all. Physical Custody can be "joint" or "sole":

Joint Physical Custody. This is where the court orders that both parents have significant periods of physical custody. If a child's time is divided equally between the parents, or close to equally, the parents are sharing joint physical custody.

Sole Physical Custody. This means that a child resides with one parent, subject to the court's authority to order visitation time with the other parent.

What happens if we cannot agree on custody or visitation?

If you and the other parent are unable to agree on custody or visitation, a judge will make the decision for you. There are several steps to finalizing a custody plan. However, custody and visitation can be decided on a temporary basis if there are immediate problems. For example, a new school year may be approaching and you cannot agree on a school for your children. Or, one parent intends to move and wants to take the children along.

Custody Mediation. Before any hearing or trial involving child custody or visitation, both parents are required to meet with a trained counselor hired by the court. The counselor will try to help you agree on a custody and parenting plan. These sessions are arranged through Conciliation Court or Family Court Services, and are held in private offices located in or near the courthouse. In some counties (including Riverside County), the assigned counselor will submit a recommendation to the judge even if you and the other parent did not reach an agreement. Attorneys are not permitted to attend the Custody Mediations, only the parents and sometimes the children. Do not bring your children unless the custody mediator requests that you do so. Prior to your Custody Mediation meeting, you will have a meeting with your Bennett Family Law attorney to prepare for the session.

Psychological Evaluations and Minor's Counsel. Depending on the nature of the custody dispute, the judge may order a psychological evaluation of the family as well, and may appoint an attorney to represent the children. If a psychological evaluation is ordered or an attorney is appointed for your child, you and the other parent may be required to bear all or part of the cost.

What choices does the judge have in granting custody or visitation rights?

The judge may give custody to one or both parents, or, in some cases, to another adult based on the best interests of the child. Considerations include the child's health, safety and welfare, as well as any history of abuse by one parent. For custody to be awarded to someone other than a parent, however, the judge would have to believe that giving custody to either parent would be detrimental or harmful to the children.

Try to keep in mind that the actual time spent with your children may be more important than the legal terminology used to describe the arrangement. Also, the specifics of such custody orders can vary. For example, a judge who orders joint legal and physical custody may name one parent as the primary caretaker and one home as the primary residence. Or, a judge might order sole physical custody to one parent and supervised or no visitation to the other if it appears that a parent may present a threat to the child's welfare or safety. In addition, stepparents and grandparents may be given visitation in certain circumstances.

Will the judge consider our children's wishes?

It depends. The judge must consider what the child wants if the child is "of sufficient age and capacity to reason." Children age 14 and older are also entitled, if they desire, to express an opinion about custody issues to the court. In either case, however, the judge is not required to follow the child's wishes.

It may be difficult to determine the child's true wishes if one or both parents have coached the child. Most often, children don't want to hurt either parent. Avoid trying to persuade your child to choose you over the other parent; this puts a tremendous emotional strain on the child. The court mediator or other evaluator may meet with the child to help convey the child's real desires.