Sole vs. Joint Custody: What's the Difference?
Sole and joint custody are the only recognized forms of physical and legal custody in California.[1] As a result, there are only four possible options for custody:
- Sole legal custody
- Sole physical custody
- Joint/shared legal custody
- Joint/shared physical custody
Understanding the Distinction Between Custody and Visitation
No, child custody and visitation are two different things.
Custody rights define what legal rights and responsibilities a parent has regarding the care of a child, while visitation rights define how time is spent with the child. A person who has the right to visit a child does not necessarily have the same rights regarding that child that come with a custody agreement.
When one parent clearly has physical custody of a child, the other parent is considered non-custodial and is awarded visitation rights rather than custody rights. Nonetheless, some courts still refer to the time a custodial parent spends with the child as “visitation.”
The words custody and visitation are frequently interchanged because, in many cases, parents share both the legal and the physical custody and visitation is part of that agreement. However, the law regarding custodial rights and visitation rights is different. It’s important that you know your legal rights so that you can adequately protect those rights and provide the best scenario for you and your child.
Creating Custody Agreements Outside of Court
One way of determining custody is for the parents to reach an agreement.
It is highly recommended that parents completely exhaust all out-of-court options before proceeding to the Riverside child custody court. Reaching an agreement out of court will maintain parental rights without the government telling the parents what it thinks is the right course of action.
When parents reach a mutual agreement, a court is likely to congratulate the parental efforts and support that agreement. A court may reject the agreement, however, if it finds that it fails to take into account the best interests of the children. Remember, reaching an agreement is not simply about saving time and money, but about preserving the children’s interests and rights.
Settlement vs. Contesting Custody: Making the Right Choice
California child custody laws have evolved dramatically, and that goes for Riverside and San Bernardino counties as well. The state no longer automatically grants mothers custody over fathers, regardless of the children’s age. California law makes joint physical custody a priority preference, even where both parents disagree on a custody arrangement. Where the parents do not agree to joint custody, the court has the discretion to order joint custody after either parent has applied for joint custody.
The court will balance the best interest of the children in making its decision.[4] Remember, the best interests of the children are the court’s focus, not the interests of the parents.
The question is, when is it proper to fight a custody case, rather than reach an agreement?
This question is not easily answered, as every family’s situation is different.
On the one hand, there is a great deal of truth to the notion that a contested custody case is not in the children’s best interest. Reaching an agreement that benefits both parents not only saves valuable time, but may also help preserve emotions. More importantly, custody is left to the decision of a judge.
On the other hand, there are circumstances where challenging custody is in the best interest of the children. Recall that the court will look at a number of factors when determining the children’s best interests.
An experienced child custody lawyer has the ability to properly evaluate the family dynamic and whether certain factors need to be addressed.
Designing a Visitation Schedule That Works
Visitation rights are based on an agreed-upon plan that establishes how and when a parent—or in some cases, a third party—can visit a child. Ideally, both parents agree upon visitation rights before they ever appear before a judge. The court will likely approve visitation plans that have been agreed upon by both parties so long as the plan is not detrimental to the child or contrary to the child’s best interests.
However, even when visitation is agreed upon, it may be in the parent’s and the child’s best interest to get a court order, as informal plans are most likely unenforceable if one party fails to live up to their end of the bargain. Having a court order can help prevent any future problems. In cases where an agreement can’t be reached, a court order becomes necessary. As with child custody agreements, a visitation plan can be established at any time and later modified if there is a change in circumstances.
Exploring Different Types of Visitation Plans
There are several types of visitation plans, including the following:
- Scheduled Visitation - A scheduled visitation order is an order for visitation that is based on a detailed schedule. This type of plan should specify the dates and times of visitation, which holidays the child spends with either parent, and how summer vacations and school breaks are divided. This type of plan helps eliminate potential conflicts related to who spends time with the child and when. This plan is probably ideal in situations where the parents have a hard time agreeing to a schedule.
- Reasonable Visitation - This plan lacks the details of a scheduled plan and provides a situation where the parents can work out the details between themselves. This plan works well where parents maintain good communication with each other and are flexible as to the times and dates of visitation. However, problems can arise if there is conflict between the parents in the future.
- Supervised Visitation - This plan is best when there are concerns about the safety and well-being of the child, such as in cases of domestic violence or drug abuse. The court can help the parties work out the details as to how the supervision is arranged as well as the time and duration of the visits.
Third-Party Visitation Rights: What You Need to Know
In certain circumstances, parties other than the parents can seek visitation rights with the child.
Unlike custody rights, visitation rights may be granted to:
However, the right of third parties to visit a child is limited by the parent’s constitutional right to make decisions regarding the care, custody, and control of their child. Family courts cannot grant visitation to third parties over the objections of the parents unless the court engages in a complicated process of evaluating whether granting the visitation right would infringe on the parent’s constitutional right.
Key Factors Influencing Custody and Child Support Decisions
If the parents can agree to a custody arrangement, the court is likely to grant the arrangement, provided that the interests of the children are protected. If the parents cannot agree, however, the court will require them to undergo mediation and follow the direction of the mediator’s recommendation.
If mediation is unsuccessful, both parents will convene with the judge in a Judicial Custody Conference. If the parents do not reach an agreement, the judge will send the parents to undergo a thorough assessment. Afterward, the judge will make a custody ruling based on the results of the assessment. The court’s overarching goal is to determine an arrangement that is in the best interests of the child.
In reaching its decision, the court will weigh the following:
- Age, health, and safety of the children
- The custody preferences of mature children
- Parenting skills
- How much time each parent has available to spend with the children
- Any history of domestic violence and/or alcohol/drug abuse
- Which parents are employed
- How capable each parent is to care for the children
Child Health & Safety: Top Priority in Custody Cases
The Court will look at multiple factors that may affect the children’s welfare and safety when making its determination of custody. For example, when a parent has a history of violence or ongoing drug/alcohol abuse or domestic violence, the court may not grant custody to that parent. Prior convictions related to physical or sexual abuse may also preclude a custodial status, unless the judge finds that history to be unrelated to the parent’s current ability to provide a safe and healthy environment.
Allegations of abuse that have not resulted in convictions must be corroborated by independent evidence and testimony from a reliable source. Courts may even grant a noncustodial parent the authority to make healthcare decisions for the best interest of the child where the custodial parent has failed to properly do so; for example, if they are having difficulty with the stresses and pressures of life, has displayed questionable decision-making, or has exhibited a delusional quality to their thinking.[5]
How Children's Preferences Influence Custody Decisions
When a child is considered mature enough, the court must consider that child’s intelligent wishes and preferences.
California law—and, by extension, the law in San Bernardino and Riverside—does not establish a specific age when a child is considered mature. However, the older the child is, the more likely the judge will give the child’s wishes credit.
The Importance of Stability and Continuity in Custody Cases
Courts do not favor disrupting stability and continuity in children’s lives. A court may favor custody to a parent who continues to reside in the children’s established school district, hometown, or in close proximity to his or her primary care physicians.
Courts also do not favor separating siblings from one other, except in very rare occasions. In those cases, there is an extremely high burden that a court must meet before ordering the separation of siblings.[7]
Addressing Substance Abuse in Child Custody Cases
Where a parent has a history of drug or alcohol abuse, the court will weigh this history when making its custody determinations.
It is important to remember that if a criminal record does not support this history, these accusations must be supported by independent, reliable sources of information. The court cannot consider these accusations until after a review of this information.[6]
Domestic Violence: Its Impact on Custody and Visitation
In situations where there are allegations of domestic violence, the court can issue an emergency protective order. The protective order can be made permanent if the court finds that there is support for the allegations. To ensure everyone’s safety, a parenting plan should be developed that specifies the time, date, place, and means of transferring the child for visitation purposes.
In cases where the abused party is staying at a domestic violence shelter, the court can order that the transfer of the child be done in a manner that will keep the location of the shelter confidential.
A judge will consider a case to be a domestic violence case when:
- One parent was convicted of domestic violence in the last five years
- Any court has found that one of the parents committed an act of domestic violence
Navigating Child Custody Court Orders and Forms
A parent may request a court order, or change to an order, for custody/visitation. Applying for an order or change depends on your specific circumstances and can be difficult to navigate without proper legal counsel. An attorney from our team at the Law Office of Michael R. Young can explain your next steps.
Selecting the right forms depends on whether the parent:
- Is filing for divorce from the child’s other parent
- Is married to the child’s other parent
- Is unmarried to the child’s other parent
- Is not a biological parent and the family has no existing Family Court file
- Is not a biological parent and the family has an existing Family Court file
- Has a case with the DCSS and paternity has been established
- Is seeking a restraining order related to domestic violence and/or seeking custody
While these forms are available to the public, it is strongly advised that an attorney assists in navigating the complexities of your unique situation. A parent may seek a Request for Order if their case has been opened or if the parents are prepared to file for divorce/separation /parentage. A Request for Order gives the court the power to call the child’s other parent to court in order to discuss the parental situation. These orders may be issued at any point during a case or even after the divorce.
