Child Custody and Child Visitation
CHILD CUSTODY AND CHILD VISITATION
There are widespread misconceptions of terms concerning the custody of and visitation with children when parents divorce. Here are the definitions of key terms directly from California's Family Code.
"Joint custody" means joint physical custody and joint legal custody. Family Code 3002
Joint Legal Custody
"Joint legal Custody" means that both parents shall share the right and the responsibility to make the decisions relating to the health, education and welfare of a child. Family Code 3003
Joint 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 as to assure a child of frequent and continuing contact with both parents.... Family Code 3004 Emphasis added.
Primary Physical Custody or Primary Custody
Neither of the above terms has any legal significance nor does either term appear in the Family Code. It is a short-hand with no fixed meaning.
California, and most other states, have established the health, safety and welfare of a child to be the court's primary concern when making orders regarding physical custody, legal custody or visitation time of children. The Family Code reiterates that frequent and continuing contact with both parents is the public policy of California. Family Code 3020(b)
Courts have wide discretion in determining what is in the best interest of children. As a rule, a court will tend to err on the side of caution in making orders where there is credible evidence of factors potentially harmful to children. This position, though wise, is frustrating to those parents against whom unjust or exaggerated allegations have been lodged.
Much more than not, it is the Mother who has the lion's share of physical time with the children. This appears to be true because Dad is still the greater breadwinner even in these days of two-income families. Generally, Mother's work is geared more to 9 to 5 as she assumes the responsibility for the day-to-day care of the children. Dad usually is the one who travels, works over-time, night shifts or week-ends. Thus, Dad's schedule is out of synch with the 9 to 5 lifestyle of children who are attuned to the schedule of school, regular or pre-school. As children mature, court ordered visitation is frequently less important since teenagers tend to have minds of their own as to where and with whom they will spend their time. Few teenagers much care what Judge Soandso says about where they will sleep.
EARLY CASE PROBLEM
Usually when one parent files a petition for dissolution, the other parent moves out of the family home. On doing so, day-to-day contact with the children is broken and there are no court orders as to visitation. And, at the same time, the shock of divorce is profound on the children. Ideally, parents will have arranged sharing of the children’s' time without a court's order. With less than ideal parents and until there is a court order; either parent may have physical custody. Neither parent may legally prevent the other from simply taking the children to visit with him or her. This is not the wiser course but, without a court order, there is no "kidnapping" of one's own child.
AN IMPERFECT SOLUTION
To rectify this condition, either party may apply to the court on an overnight basis for temporary orders concerning custody and visitation which will then impose enforceable orders on both parents to do what they should have done collectively. This is a perfect example of where a stranger, the judge, decides on the most important question in any dissolution. It should be avoided at almost any cost, not because judges are bad or wrong but because this is a parental responsibility, one that each should discharge with care and thoughtfulness as it will reverberate throughout not only the parent's lives but also the lives of their children.
In most cases, child custody is not a major issue. One parent, usually Mom, has been the main caregiver throughout the child's life and the parties typically agree that this should continue. It need not be Mom but reality says it usually is. No matter; the court will rarely object to any parenting agreement mutually arrived at between Mom and Dad. Courts, in fact, encourage such agreements as beneficial for the children. If the issue of custody is put before the judge, the judge will render a custody decision based on the judge's perception of what is in best interest of your children. So, if you and your spouse can't agree, then the black-robed stranger will decide who has your children, when and for how long.
MAY THE CHILDREN CHOOSE?
Technically, no. And when children are young - under 12 say - they basically have no say. A judge may or may not listen much less give credence to what a child says. As children grow towards adulthood though, judges are more inclined to listen though they have no obligation to do so. Besides, do you think you can tell your 16 year old son to stay with you as opposed to going back to his Mom's house? In reality, the custody - visitation issue wanes after children reach their teens.
IF YOU MUST LITIGATE
If you must litigate custody, you will need evidence to demonstrate to the court that the other parent should be limited as to custody. Since the public policy of California is for "frequent and continuing contact", your evidence must be compelling. Generally, you will need written testimony from neighbors, family members, teachers, day care workers, doctors and others who have witnessed the parent-child interaction. These should be continuing observations, not simply once-in-a lifetime. Of course, these witnesses must also be willing to testify that you are a good to great parent. Pictures or videos might help too if any are available.
An alternative approach is to ask the court to appoint a child custody evaluator, a licensed therapist who specializes in these evaluations. This is frequently done in contested matters in California courts. The evaluator spends time with each parent and each child, depending on their age, and the parents and the child [ren]. A written report is prepared and the evaluator testifies in open court, subject to questioning by the parents or their lawyers. Usually, the court accepts the recommendation of the evaluator. Parents, too, seem to be more accepting of the "doctor's" report than of other decision makers.
TEMPORARY - PERMANENT
Until trial or a parental agreement is accepted, a court may order temporary [pendente lite] custody and visitation orders. Only after trial or an agreement may the court order permanent child custody and child visitation orders. The same is true of child support orders and spousal support orders.