You have been devoted to your children since the moment they were born. You've been there for every important milestone in their lives: their first birthday, their first lost tooth, their first day of school. You have protected them from the world; comforted them in their time of need. You have always shielded them from hurt- and now your life decisions are the source of their pain. The thought that you might not be there for their next "first" is awful. The thought that a custody battle will cause them harm is unacceptable. You are worried for your children's future. You are worried about their emotional well-being. You may even be worried about their safety. The last thing you want is an ugly custody battle.
Everyone has advice, but is any of it true? You need the help of someone who understands your needs and the legal process. What is sole legal custody? Can you get it? Do you have a chance at joint custody? What does the term mean? Can your son or daughter choose where he or she wants to live? These are some of the questions running through your mind. Below are some of the important terms you will hear throughout your custody process:
• Physical Custody- Who the children will live with and the percentage of time the children will spend with each parent.
• Joint Custody- This can be used to describe either joint legal custody (the right to jointly make decisions about the children) or joint physical custody. Joint physical custody means both parents spend substantial time with the children. However, the term is most often used to describe parents having an equal timeshare with their children.
• Visitation- The actual schedule. A visitation order explicitly sets forth which days the children will spend with each parent. It also describes the time, place, and manner in which the exchanges will happen.
Courts will almost always award joint legal custody to the parents. This allows each parent to be involved in making decisions pertaining to the health care, education and day care for the children.
Joint legal custody gives each parent the right to obtain information about their children, their children's schools, their doctors, etc. It also requires each parent to notify the other if the children have any medical emergencies or are scheduled to undergo any non-routine medical treatment. No prior consultation is required for routine checkups or minor illnesses.
Without joint legal custody, a parent cannot obtain information about his or her child from the child's school or doctor; nor will that parent be able to take his or her child to any doctor for treatment if the child is injured.
California has a policy that each parent should have frequent and continuous contact with their children; or, rather, children have a right to frequent and continuing contact with each of their parents. There is no standard physical custody order because each family has a unique set of circumstances which must be taken into consideration. The court considers a number of factors and then fashions an order that it believes will be in the children's best interest.
Here are some factors the court considers:
• Work Schedules: What is the schedule of each parent?
• School Schedules: Will visitation interrupt the children's schooling?
• Distance: How far apart do the parents live?
• Violence: Is there any history of domestic violence?
• Drug/Alcohol Abuse: Are there any substance abuse issues?
• Abuse/Neglect: Is one of the parents a danger to the children?
• Mental Illness: Are there any mental health issues?
• Living Quarters: Do the parents have room for the children?
• Alienation: Is one of the parents attempting to alienate the children against the other parent?
• Desire: Is there a particular schedule the parents are seeking?
• Wishes of the children: Are the children old enough to choose?
• Stability: Can each parent provide a stable home?
• Comfort level: Is one of the parents in a situation which makes it uncomfortable for the children to visit?
The policy of providing each parent with frequent and continuing contact can only be overcome for limited reasons. All things being equal, the court will attempt to establish a joint physical custody schedule so the children's time is split nearly equally between each parent's home.
Joint physical custody does not have to be structured in any specific way. It cou ld be a week-on, week-off schedule, or even an every-other-day schedule. It could also be that one parent has most weekends and the other has weekdays.
If joint physical custody is awarded, the children cannot move out of the area without an agreement between the parents or a court order. Any move that will make it more difficult for the other parent to exercise visitation cannot be made without prior approval. Parents risk losing custody if they move the children without a court order