Basic Facts About Child Custody & Visitation

Child custody issues and family law are areas of the law that are extremely complex and contested. For the attorney, a practice handling child custody is the most stressful and contested area in the practice of law. Custody issues are filed with strong emotional issues some of which are legitimate and some of which are personal wants of the parents over the actual needs of their children.

As parents we find that raising our children is almost always a source of conflict between ourselves and the other parent. This coupled with a divorce cause a situation where our children look at what is happening between their parents as a collapse of the family. Often children will blame themselves for what is occurring with their parents. Our children love us as parents and only want us to be happy and safe. We as parents, by instigating a divorce have upset this and need to understand the impact it has on our children. We also have no choice but to set aside our differences as we have no choice but to have to work with and communicate with the other parent until our children turn 18 years old.

Often parents enter into a divorce not really understanding what a custody and visitation order is for. Custody and visitation orders basically are the minimum standard upon which the court will look to as to the behavior of the parents involving the children. The primary concern of the court in a divorce proceeding is the safety and well-being of the children. Custody and visitation orders are for the protection of the children and provide consistency that children need in their upbringing.

Custody and visitation orders will address both physical custody, (who the children live with primarily), as well as legal custody, (the day to day decisions as to health, education, medical, and religious decisions as well as other areas where both parents should cooperate). When tow parents are able to agree to custody provisions and work together in the best interest of their children this is preferred.

However, when the parents are unable to come to an agreement, cooperate, and/or communicate, the court will step in and make the parental arrangement for them. Parties to a divorce must also understand that there is no preferential treatment of one parent over the other as The State of California does not subscribe to the "tender years doctrine." This means that men have just as much right to raise young children, including infants as do women. California courts will not unilaterally give mothers preference in setting custody and visitation orders. Depending on the best interest of the children, and who the primary caretaker of the children was before the brake up, will guide the court as to who to place the children with as the primary care giver. As stated by the California State Legislature, it is in the best interest of children that children have equal access to both parents. This gives rise to a presumption of 50/50 visitation and custody rights between both parents. It must be remembered that it is what is in the best interest for the children, not what is in the best interest of the parents or the parents' desires.

At the outset of a request for custody and visitation orders, the court as in Santa Clara County Superior Court, will require the parents to attend a orientation course, which is on line, and then mediation through Family Court Services. The mediation is at no cost to the two parents. If the parents are able to reach an agreement in mediation then it will become the order of the court. If however the parents are unable to reach an agreement then the court will address the issue at a court hearing. Remember the court in Santa Clara County will reach its decision about what custody and visitation order is in the best interests of the child. If the parents are still unable to reach an agreement as to custody and visitation orders then the court may order a private custody evaluation be performed by an outside expert to help them reach such a determination, this is called a 730 evaluation and the evaluator is the court's neutral expert.

For those parents who are able to reach agreements, communicate and cooperate for the best interest of their children, the court has standard visitation and custody orders. The custody provisions are found on the California Judicial Counsel Forms FL-341D and FL-341E. However, the standard visitation order provides for a week night or week night overnight every week and then alternating 1st, 3rd and 5th weekends of the month. Weekends are usual from Friday to Sunday evening, but if the parents feel they can both have the children to school on time on Monday mornings the parent with visitation can also have the weekend visitation until Monday morning where they must have the children to school on time.

Holidays are usually split between the parents and are addressed on Judicial Counsel Form FL- 341C. Usually parents will chose what holidays they wish to share with the holidays being alternated on a odd/even basis. Additional visitation provisions address three day weekends as well as extended time during the summers. Both parents must understand that any holiday provision will override a regularly schedule visitation. Again, the Legislature of The State of California has determined that it is in the best interest of the children that frequent and continuing contacts be maintained with the non-custodial parent.

Additional Considerations for Parents going through a Divorce are:

• What to Tell Your Children
• Making Changes Easier
• Child’s Best Interest
• High Conflict Parenting
• Long Distance Parenting

Contact San Jose Child Custody and Visitation Lawyer Merrisa L. Coleman-Bishop.