First, it is important to understand that there are two forms of child custody – legal custody and physical custody.
Legal custody primarily deals with the right of a parent to make decisions regarding the child’s life in relating to the health, education, and welfare of a child such as:
- Enrollment in or leaving a particular private or public school or daycare center;
- Beginning or ending psychiatric, psychological, or other mental health counseling or therapy;
- Participation in extracurricular activities;
- Selection of a doctor, dentist or other health professionals;
- Participation in particular religious activities or institutions and;
- Out-of-country or out-of-state travel with the child.
Physical custody occurs when a parent has their period of time (visitation) with the child.
Each of the two forms of custody can be either ordered as joint or sole 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. CA Fam. Code 3003.
- “Sole legal custody” means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. CA Fam. Code 3006.
- “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. CA Fam. Code 3004.
- “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. CA Fam. Code 3007.
- “Joint custody” means joint physical custody and joint legal custody. CA Fam. Code 3002.
A court order can contain any combination of joint and sole custody such as: Joint Legal/Joint Physical, Sole Legal/Sole Physical, Sole Legal/Joint Physical, or Joint Legal/Sole Physical.
Do I need court orders for child custody and visitation during my divorce?
Generally, it is a good idea to have orders for child custody during a divorce for three reasons.
First, if there are no orders in place, one parent could decide to withhold visitation of the children from the other. In this situation, law enforcement will not intervene to force the other parent to turn over the child for visitation. Police will not get involved is because they deal with crime – not civil matters. The police will tell you to go to court and get a custody order. Once you have a custody order, if the other parent violates the order, the police can act to enforce it because a violation of a court order could be contempt. Contempt is quasi-criminal, meaning it has both criminal and civil components. Because the police deal with crime, they can to assist with enforcing the custody order. Even if your divorce is amicable and you don’t believe the other parent would withhold visitation, it is still a good idea to get an order that has teeth and is enforceable.
The second reason it is good to have a custody order is for the parties to be on the same page with a parenting plan. Having a custody order can reduce conflict and misunderstandings between the parents at a time when emotions tend to run high.
Finally, a custody order helps provide clarity and consistency for the children. Having a set schedule in place can help with ease tensions and remove uncertainties for the children in terms of their understanding of spending time with each parent.
How do I get court orders for custody and visitation during my divorce?
The parties can either obtain a custody order by mutual written agreement in the form of a Stipulation and Order which is submitted to the court and signed by the Judge, or one-party files a Request for Order re: Custody and Visitation with the court.
If a Request for Order is filed in Sonoma County, a mediation date is set for the parents only with Family Court Services to try and work out an agreement. A court date is also set to hear the motion after the mediation. If the parties come to an agreement at mediation, the court date after mediation can be dropped provided they file a Stipulation and Order with the court memorializing the agreement they reached in mediation.
If there is no agreement after mediation, the mediator that met with the parties will provide a recommendation to the court as to a custody order and parenting plan. The parties must attend the court date and have the option of either accepting the recommendation of the mediator or litigating it further. The hearing after mediation is only 20 minutes with 10 minutes allocated to each side, so if a party believes they will need more time than 10 minutes to present their case, they have the option of requesting an evidentiary hearing. An evidentiary hearing is like a mini trial during which the parties can present evidence and testimony as well.
In Sonoma County the tendency by the court is to adopt the recommendation without modification because the rely on the expertise of the appointed mediators and the time the mediator has spent with the parties to arrive at their recommendation.
Can a custody order be changed?
There are three ways that parties can modify their custody order in California. First, the parties can modify the parenting plan without further court intervention provided that a provision of the custody order makes it clear they may do so. Second, if there is no such provision, the parties can modify it by a Stipulation and Order which replaces the current order. Finally, if there is no modification provision in the current order, or there is no agreement by Stipulation and Order, the parties must return to court and may only request a modification of the parenting plan based on a “change in circumstances”. A “change in circumstances” means there has been a significant change that requires a modification to the custody order and the modification requested is in the best interest of the child.
Legal custody? Physical custody? Many parents are not sure of their legal rights in regard to their children in a divorce and may not know how to fight for what they believe is right. Contact the Santa Rosa office of Beck Law P.C., to learn more about child custody in California.