One of the largest areas of contention during the breakup of a marriage is often that of child custody. Many parents find it extremely important to have primary custody of their children, so they will argue and fight hard to gain the most parenting time possible. In a number of other cases, a parent may fight for child custody in order to hurt or attack his or her ex-spouse. Because of this, the issue of child custody can seriously complicate a divorce.
If you and your ex-spouse are having difficulty reaching an agreement about child custody and parenting time, then the help of a capable family lawyer can be invaluable. Contact the Oceanside child custody lawyers of Fischer & Van Thiel at 760-722-7646 to speak with an attorney today about your case.
RESOLVING YOUR CUSTODY DISPUTE
Despite the fact that child custody is one of the most difficult issues for divorcing parents to address, it is also the area with the fewest constraints and rules established. This often lends to long, stressful, and potentially nasty child custody disputes. Most of the time, parents need to take the time to cool off and let their anger dissipate before they can work out the issue of child custody and make a decision that will be in the children’s best interest.
One of the first issues that needs to be addressed in a custody matter is whether or not California has jurisdiction of the children to make custody and visitation orders. In order to evaluate what state is the child’s home state, the court will look at where the child has resided for the six (6) months prior to the motion for custody being filed. Other factors such as where a child was conceived or what state the child has the most connections with may also be relevant in certain circumstances. In urgent situations, the court can assert emergency jurisdiction.
Steps for Obtaining Custody Orders
In San Diego County, when one party wishes for the court to make custody and visitation orders, a motion must be filed. This motion, called a Request for Order (RFO), sets out a parent’s requests for legal and physical custody of their child(ren).
Once that motion is filed with the court, both parents receive a Family Court Services (FCS) mediation date and a hearing date. Typically the mediation date will be 3-4 weeks prior to the hearing date.
At Family Court Services mediation, both parents sit down and speak with a court counselor. The counselor will speak with the parents to learn more about the specific situation and each parent’s custody request. The counselor also has access to the parties court file and can review previously filed pleadings and orders. During the mediation session, the court counselor will work with the parents to try and reach a mutually acceptable agreement for how the parents will share custody. If an agreement cannot be reached during the session, the court counselor, after review of the issues presented at the mediation session and consideration of any external contacts with the chldren or other professionals who may know the children such as teachers or therapist, will write up a report containing the counselor’s recommendations for what parenting plan is in the child’s best interest. That recommendation is sent to both parents as well as placed in the court file for the Judge’s review. At the court hearing, the court will review the counselor’s recommendation, hear argument from both parents and ultimately make custody and visitation orders.
Family Court Mediation Tips
In each case, the attorneys at Fischer & Van Thiel prepare their client for Family Court Services mediation. Extensive information regarding the process and what to do/not do is provided, in writing, well in advance of the mediation date. Further, in-person or telephonic appointments are made just days prior to the mediation session to discuss the individualized facts of the case and how to best present the relevant factors to the Family Court Services counselor. We feel the preparation we offer our clients helps ensure a more successful outcome in the family court custody/visitation process.
Legal vs. Physical Custody
“Custody” rights are comprised of both legal and physical custody.
Legal custody involves the decision-making rights for issues such as education, religious affiliation and participation, health and medical decisions and overall welfare of the child. Physical custody is the actual physical time a parent has with their child. This includes the actual care and supervision of the child and how the everyday responsibilities for care of the child(ren) are divided between the parents. Joint legal custody means that each parent shares in decisions regarding their child’s education, religious and medical choices. Sole legal custody means that the parent who is given sole custody has ultimate say in the legal decision-making regarding the chld’s scholastic and medical decisions and they are under no obligation to reach an agreement with the other parent.
Joint physical custody means that the parents have about an equal timeshare with their child. This may mean that the child lives with each parent for one week at a time before going to the other parent’s residence. Additionally, the child may have a joint physical custody plan in which they are with mom on Monday thru Tuesday morning, with dad on Wednesday thru Thursday morning and alternate Friday thru Monday morning with each parent.
Sole physical custody means that one parent has the majority, if not all of the physical timeshare with the child. The other parent may have limited, if any, visitation with their child.
Visitation is the allotted parenting time the non-custodial parent has with the child.
Understanding the Primary Caretaker Role
The court typically likes to keep the “status quo” with respect to the custody and visitation arrangement the parties are currently exercising. This means that if the other parent is primarily responsible for the majority of the duties related to the child, this may continue and may be reflected in the court’s order for custody and visitation. A parent can demonstrate that they are the “primary caretaker” if they are the parent primarily responsible for caring for their child’s day to day needs, takes the child to doctor appointments and takes the children to and from school and is most involved in the child’s education and extracurricular activities and needs. In addition to these factors, the court will also evaluate the parents work schedules to ascertain who is realistically able to care for the children on a primary basis.
Ensuring that the “primary parent” will facilitate frequent and continuing contact between the child and other parent is extremely important. The court will be reluctant to provide a parent primary custody if there is concern that parent will not facilitate contact between the other parent and the child.
Best Interest Standard
In making custody orders, the court looks at what is in the best interest of the child. Some of the factors that are weighed include the health, safety and welfare of the child, history of abuse by a parent or individual requesting custody rights, the nature and amount of contact with both parents and the illegal use of controlled substances or continual abuse of alcohol. The court will also consider individual factors unique to your case.
The court must make custody and visitation orders that are found to be in the best interest of the child. When situations arise that affect the best interest of the child, a motion to modify custody can be filed by either parent to address the change with the court.
Issues in Child Custody
There are various factors the court considers when making custody and visitation orders. If the other parent has displayed traits that would deem them unfit to care for the children, those issues will need to be discussed with the court. Specifically, issues such as drug or alcohol abuse, prior history of domestic violence, physical, mental or sexual abuse or failure to provide suitable living conditions should be brought to the court’s attention. These issues can and likely will affect the parenting plan that the court orders.
If a restraining order is in place protecting one parent from the other, the court has the ability to make custody and visitation orders. The court could still order visitation for the restrained party. The visitation may be supervised by a close family member, friend or a professional supervisor. This third party would help ensure that appropriate interactions occur between the child and restrained party. The San Diego Superior Court website has a list of professional supervisors that can be utilized for supervised visitation. Additionally, the court may recommend that visitation occur in a therapeutic environment. That visitation would include meeting with a licensed mental health professional to supervise the visitation.
Alternatively, the court may suspend all visitation until a hearing on the merits of the restraining order can be held.
Wishes of the Child
When evaluating custody and visitation, the court has the ability to listen to what the children want. Whether or not the court will allow the children to testify depends on a variety of factors including the age of the child. Often times, the Family Court Services counsel will speak (in an age-appropriate manner) to the child regarding the custody issues. The child’s thoughts may be used by the counselor in the custody recommendation.
If the court finds that it would be appropriate to have the child testify, there are a number of options for how testimony will be provided. Many judges prefer to speak with the child alone in their chambers, to discuss the child’s thoughts. Sometimes the court will allow both sides to submit questions for the judge to address when talking with the children. Other times, the judge will allow the child to speak in the courtroom.
Private Custody Evaluations
In more difficult or contentious cases, a independent evaluator may be hired (by agreement of the parties) or appointed (by the court) to interview the parties and children in detail and write a thorough report and recommendation to the court. Most private custody evaluators are psychiatrists or psychologists who focus their practice on high conflict custody matters. These reports and recommendations hold a significant amount of weight with the court and although costly, are extremely valuable in certain cases.
Private custody evaluations, also frequently referred to as 730 evaluations or bonding studies, are also used in cases where one parent seeks to move the child away from the other parent in what is known as a move-away.
Custody for Special Needs Children
Ensuring that the proper custody and visitation orders are made in cases involving special needs children can be especially difficult. Often times, cases involving a special needs child requires additional attention due to the extra demands placed upon the parents due to the child’s needs. Issues such as doctor’s appointments, medication and alternative therapy may need to be considered by the court. In addition, increased support may also be necessary.
If a parent wishes to relocate with the minor child outside of the county or further, they must have written permission from the other parent or a court order allowing the move.
An order allowing a move-away can be difficult to obtain depending on the custody and visitation order that is currently in place. In situations where the parties have an almost equal custody arrangement, the court can be more reluctant to allow one party to move, especially if the court feels the move is for the sole purpose of interrupting the visitation between the child and other parent. Other factors such as age of the child(ren), distance of the move, relationship the child has with each parent and the impact the move will have are evaluated by the court in move-away cases. The factors the court uses to analyze a move-away depend on whether the custody orders are initial custody orders (pre-judgment) or post-judgment.
There are a number of additional legal factors that must be addressed in move-away cases. Additionally, the majority of move-away cases are taken to trial.
Given the length of time it can take to obtain a move-away order, it is imperative that you begin the process as soon as possible.
The experienced attorneys at Fischer & Van Thiel are familiar with the relevant factors and case law and can help ensure that your best case is presented to the court.
Modifying Custody Orders
Any time a party feels that there has been a change in circumstances that would warrant a change in custody and visitation, a motion to modify custody can be filed. If the parties were last seen by Family Court Services (FCS) in the last year they will be scheduled for a court date only. If it has been more than a year since meeting with FCS or if it has been less than a year since meeting with FCS and the court determines it necessary, the parties will be ordered to meet with FCS prior to the court hearing. The same procedure applies and the counselor will see if the parties can reach an agreement on how to share custody and visitation. If no agreement is reached, the counselor will write up their recommendation and provide a copy to the court and each party.
A party must be able to show that a change in circumstances has occurred that warrants a change in custody. A party cannot file a request to modify if there has been no change since the last order was made.
Common Concerns Kids Have Divorce and Custody
It is very common for children to be confused about the recent changes taking place in their home and with their parents. It is expected that they will ask questions about what is going on, where they will be living and if their routine will change.
It is important that neither parent place the child in the middle of these adult issues. The children should not be asked to report back on what is occurring at the other parent’s home.
It is imperative that each parent try to lessen the burden their children may feel during this difficult time. This can be accomplished by ensuring the kids keep a routine and have a sense of normalcy during and after the divorce/custody process.
The court offers and can recommend various programs for children to help cope with the divorce and/or custody process.
The attorneys at Fischer & Van Thiel have a list of resources and programs for children of parties going through a divorce.
Custody for an Unborn Child
If a paternity action or custody and visitation rights are necessary for an unborn child, a motion can still be filed with the court prior to the child’s birth. In fact, given the time it can take to get custody orders, starting the process as soon as possible is usually advisable.
Benefits of Making Out of Court Custody Agreements
When possible, it is always best if parties can work out custody and visitation agreements without the court’s intervention. When the parties work together to reach an agreement, the potential long-term benefits are substantial. Typically, when parties cooperate to make custody and visitation orders, it makes future co-parenting easier and more productive and it decreases the potential conflict and stress felt by the children. In addition, working out arrangements outside of court can save both parties significantly on court costs and attorney fees. Obtaining custody orders through the court is a time consuming process. It typically takes 2-5 months to get through the process of Family Court Services mediation and to have a hearing on the custody and visitation issues. Thus, agreements reached outside of court can be finalized much faster.
Having an experienced attorney assist you in your custody agreement is imperative. An attorney can ensure that the agreement is properly written and specifies the terms agreed upon by both parties to avoid any potential future conflict.
To help parents learn to effectively co-parent, it is recommended (and often ordered by the court) that each parent participate in a parenting/co-parenting class. There are a variety of classes that can help teach parents how to work together and effectively raise their children from two households. Other parenting classes such as classes focused on the parenting of infants/toddlers are available.
If you are engaged in a dispute over custodial rights of your child, then the Oceanside child custody lawyers of Fischer & Van Thiel can help. To get the experienced and dedicated legal guidance you need, contact us today by calling 760-722-7646.