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Child Custody FAQ

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What is child custody? How is legal custody different from physical custody, visitation or timeshare?

Child custody, physical custody, visitation and timeshare have very different meanings. Child custody refers to a parent’s rights and responsibilities for making decisions regarding the health, education, and welfare of a child. Physical custody is whenever the child is actually spending time with a parent. Visitation is defined by a court order describing how and when a child will spend time with each parent. California recognizes this as a right of stepparents, grandparents, siblings, and former legal guardians to a limited extent. Timeshare is visitation calculated as a percentage of time a child spends with a parent over the course of a year; this is used for determining support and not in reference to visitation plans.

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Answers to Common Child Custody Questions

Legal and Physical Child Custody

Parents who share legal custody both have the right to make decisions about aspects of their children’s lives, but they do not have to agree on every decision; either parent can make a decision alone. However, it is important for parents to work together and cooperate when making decisions for their children. Otherwise, you run the risk of ending up in court and creating conflict, which makes working together as parents even more difficult. And remember, children always suffer when there is tension between their parents, so it’s best to try to keep your relationship as conflict-free as possible.

Physical custody can be sole, joint or primary. Sole custody means the children live with one parent most of the time and usually visit the other parent. With joint custody, the children live with both parents. Joint physical custody does not mean that children must spend exactly half the time with each parent. Usually children spend a little more time with one parent than the other because it is too hard to split the time exactly in half. When one parent has a child more than half of the time, that parent is sometimes called the primary custodial parent; the other parent having visitation.

Sometimes a judge gives parents joint legal custody, but not joint physical custody. This means that both parents share the responsibility for making important decisions in the children’s lives, but the children live with one parent most of the time. The parent who does not have physical custody usually has visitation with the children, but still shares in decision making.

Sometimes the terms custodial parent and non-custodial parent are used in court or during mediation. The custodial parent is the parent that currently has visitation with the child; the child is currently visiting with that parent. The non-custodial parent is the parent who does not have the child in his or her custody at that particular time. For example, a father that has his children over the weekend is the custodial parent during that weekend regardless of whether the mother has primary custody of the children. Father will be the noncustodial parent when the child returns to mom and is in her custody.

In California, either parent can have custody of the children, or the parents can share custody. The judge makes the final decision about custody and visitation, but usually will approve the arrangement that both parents agree on or is recommended by a child custody counselor/mediator. If the parents cannot agree, the judge will make a decision at a court hearing.

Visitation

Visitation is the schedule agreed upon by the parents, or imposed by the court, which defines the parents’ time with their children. This is usually referred to as a parenting plan.

A parent who has the children less than half of the time has visitation with the children. Generally, it helps the parents and children to have detailed visitation plans (or parenting plans) to prevent conflicts and confusion.

Supervised visitation is used when the children’s safety and well being require that visits with the non-custodial parent be supervised by you, another adult, or a professional agency (such as in cases involving domestic violence). Supervised visitation is sometimes used in cases where a child and parent need time to become more familiar with each other. For example, when a parent has not seen a child in a long time, the court may order supervised visits which gradually lengthen in duration to facilitate reintroduction of a parent into the child’s life. (Often referred to as a reunification plan).

The court can order no visitation in extreme circumstances, such as physical, sexual or substance abuse towards, or in the presence of the child. This option is used when visiting with the parent, even with supervision, would be physically or emotionally harmful to the children. In these cases, it is not in the best interest of the children for the parent to have any contact with them.

How does child custody relate to child support?

In addition to custody orders, the judge will probably make child support orders. Keep in mind that a child support order is separate from child custody and visitation, so you cannot refuse to let the other parent see the children just because he or she is not making the child support payments that the court ordered. And you cannot refuse to pay child support just because the other parent is not letting you see your children. The proper way to address support issues (besides working it out on your own) is to bring the matter before the court. However, child support and custody are related because the amount of time each parent spends with the children will affect the amount of child support.

How does the court determine between custody and visitation?

Visitation is the schedule agreed upon by the parents, or imposed by the court, which defines the parents’ time with their children. This is usually referred to as a parenting plan.

The judge will usually not make a decision about custody and visitation until after the parents have met with a mediator (whether a Family Court Services mediator or a private mediator). The law states that judges must give custody according to what is in the “best interest of the child.” To decide what is best for a child, the court will consider:

  • The age of the child
  • The health of the child
  • The emotional ties between the parents and the child
  • The ability of the parents to care for the child
  • Any history of family violence or substance abuse
  • The child’s ties to school, home, and his or her community

Contrary to what you may have heard, courts do not automatically give custody to the mother or the father, no matter what the age or sex of your children. Courts cannot deny your right to custody or visitation just because you were never married to the other parent, or because you or the other parent has a physical disability or a different lifestyle, religious belief, or sexual orientation. The only criteria the court uses to determine custody arrangements “the best interest of the child.”

Why Choose McCunn Law

Our methods for handling child custody and family law issues are unique. We offer legal assistance for a range of family law cases, including:

Mr. McCunn specializes in a holistic, project management approach which empowers you to make your own decisions throughout the process. He has a reputation as a peacemaker and his honest and pragmatic attitude towards divorce and other family law issues ensures you only pay for the services you need during your case.

“McCunn Law is a high-quality and highly knowledgeable legal team. I went into a consultation regarding child custody and was extremely happy with the plan and ultimately the results of my case. They create a plan with the client’s needs and wants in mind. Drummond is also great working with regarding what kind of budget a client would be able to afford. If I have any more legal needs in the future this is the office I will use every time.”

Megan P.

“McCunn Law is a high-quality and highly knowledgeable legal team. I went into a consultation regarding child custody and was extremely happy with the plan and ultimately the results of my case. They create a plan with the client’s needs and wants in mind. Drummond is also great working with regarding what kind of budget a client would be able to afford. If I have any more legal needs in the future this is the office I will use every time.”

Megan P.

“McCunn Law is a high-quality and highly knowledgeable legal team. I went into a consultation regarding child custody and was extremely happy with the plan and ultimately the results of my case. They create a plan with the client’s needs and wants in mind. Drummond is also great working with regarding what kind of budget a client would be able to afford. If I have any more legal needs in the future this is the office I will use every time.”

Megan P.