Child custody and visitation orders may be made in several types of actions including Dissolution of Marriage (divorce), Nullity (annulment), Uniform Parentage (paternity), Juvenile Dependency Court (children’s court), Adoption, and Guardianship. This series will address child custody and visitation as they relate to each type of action and the different factors which are required to be addressed by the Court.
Child custody is an extremely emotional issue for parents and other family members related to minor children. A minor child is one who has not yet reached the age of majority, which in 1972 was amended to be 18 years of age. However, child support may continue until graduation from high school if a full-time student or age 19. In cases granted prior to 1972, child support may continue until age 21 or other dates by stipulation or agreement of the parties. In exceptional cases, support of a handicapped or other disabled adult child may be ordered past the age of majority.
Child custody is divided into Legal and Physical custody. Legal custody involves which parent will have the responsibility and obligation to care for the child’s legal needs, i.e., making decisions for health, safety, welfare including which school the child goes to, which doctor and medical procedures are required, and whether the child has a passport, driver’s license or other documentation. Legal custody can be granted either jointly or solely.
Physical custody refers to the parent who has the responsibility and obligation to care for the child’s day to day needs, i.e., making the decisions about where they live, what they will wear, what they will eat, what child care they will utilize, and the myriad needs of the child. There is no statutory or common-law term for the person not having Primary Physical custody or Joint Physical custody, although court orders sometimes provide for “secondary” Physical custody. The time of a non-primary parent is sometimes referred to as “contact time”, “time-sharing”, “parenting plan”, or “visitation.”
The non-primary Physical custody parent has their contact time spelled out either in specific detail (which alleviates misunderstandings in most cases) or referred to as simply “reasonable.” The difficulty with “reasonable” time-sharing is that if a disagreement occurs, the law enforcement agencies called to interpret the order and may have an “ambiguous” order that cannot be easily enforced. Also, a Court, in most cases, may be unable to determine if such an order has been violated by either party sufficient to find either party in contempt of the Court order.
In the “standard” custody/visitation orders, most parents in divorced families may recognize an alternating weekend Friday at 6 pm to Sunday at 6 pm and alternating holidays type of order. Parties with “50/50″ custody visitation orders may recognize a “week on/week off” time-sharing plan. However, courts and parties sometimes reach variations of these types of orders, with the “4 days/3 days”, or “2 days/2 days/5 days/5 days” or one or two “mid-week visits” either for “dinner (5 pm to 8 pm)” or overnight visits. Such orders assist the child with normalizing frequent and continuing contact with both parents and allowing the child to “live” in both homes.
In family law cases involving Dissolution of Marriage (divorce), Nullity (annulment), Legal Separation, Domestic Violence Prevention Act, and Uniform Parentage (paternity), the mother and “presumed” father of the minor child, if there is no legal father, are equally entitled to custody.
A “presumed” father is one who: is or was married to the mother and the child was born during the marriage or within 300 days of the judgment, OR he and mother tried to marry and the child was born during the attempted marriage or within 300 days of the judgment of nullity or cohabitation, OR after birth, he and mother married or attempted to marry and he is named on the birth certificate OR he is obligated to support the child under a written voluntary agreement OR he received the child into his home and openly held out the child to be his natural child. Evidence to disprove that the “presumed” father status can be presented, often by a DNA test. Once established as the father, custody rights and support obligations come into play. When one parent dies, the surviving parent is entitled to custody of the child.
In making a decision regarding the best interests of the minor child as to custody and visitation, the Court must consider the following factors: health, safety, and welfare of the child, AND any history of abuse by one parent against any child related to him/her by blood or marriage or caretaker, against the spouse, cohabitant or other person seeking custody AND nature and amount of contact with both parents AND habitual or continued illegal use of controlled substances or abuse of alcohol. Where physical abuse or substance abuse is present, the Court must make specific orders regarding the time, place, and manner of transfer of the children. If a child is of sufficient age and capacity the Court shall consider and give due weight to a child’s preference. The Court can preclude a minor child from being called as a witness and can use alternative means to discover the preference of the child such as ordering psychological and child custody evaluations to include both parents and the child. Also, the Court can appoint minor's counsel, an attorney to represent the interests of the child.
The state’s public policy is that the health, safety, and welfare of minor children are of primary concern. Also, public policy of the state is to assure children frequently and continually contacts with both parents and to encourage parents to share the rights and responsibilities of child-rearing.
Regardless of whether legal custody is awarded jointly or to one parent solely, a parent is entitled to have access to the records and information pertaining to a minor child, including medical, dental, and school records. Severe consequences result if a parent commits physical or sexual abuse on a minor child or if knowingly false allegations are made, likewise, failing to assume certain caretaker responsibilities or if a parent prevents or attempts to thwart custody or visitation orders. Significant problems arise when one parent wishes to “move away” with the minor children which may cause a disruption in the current child custody and visitation parenting plan. Legislation and case law are pending in this area. Commencing July 1, 2003, all child custody and visitation orders must contain specific language to ensure California child custody orders are complied with outside state borders and Courts must take steps to prevent the abduction of minor children by one parent if the risk of abduction is discovered.