CUSTODY AND VISITATION

The California Family Code distinguishes between “legal” custody and “physical” custody of minor children. The Family Code allows for “joint” or “sole” custody.

Physical custody simply refers to the percentage of time each parent has with the children or the amount of actual physical control each parent has over the children. Legal custody refers to the right and responsibility a parent may have to make decisions regarding the children’s healthcare, education and welfare. Sole legal custody means that only one parent has these rights and responsibilities while joint legal custody indicates that both parents share these rights and responsibilities.

Issues involving custody and visitation can arise incident to a dissolution or after the conclusion of a dissolution of a marriage or a domestic partnership, parentage actions where parents never married, circumstances involving domestic violence, circumstances involving step-parents or grandparents and other circumstances.

Individuals who may request custody or visitation orders include biological parents, adoptive parents, presumed parents, same-sex couples and, in some circumstances, relatives of the children.

Once the court is aware that custody and/or visitation is going to be an issue typically the first step is that the parties are ordered to take part in mediation, either privately or with a mediator employed by the courts. As with all areas of family law, the court system will do everything in its power to help the parties resolve the issue by agreement. Usually the court will not allow a custody or visitation issue to proceed to a contested action (a trial) until the parties have exhausted all options that would allow them to reach an agreement.

If the issues are not resolved by agreement, then there are several things that can happen before an actual trial. Typically the court will initially order a custody evaluation. This can be the most critical event in a custody case as the court will undoubtedly rely quite heavily on the recommendations of the evaluator, sometimes with little or no changes.

A custody evaluation consists of the following:

Individual interviews with each parent;
Individual interviews with each child;
Interviews of each child with each parent;
Visits to each parent’s residence;
Psychological testing of each parent and each child;
Interviews with any third parties provided by each parent or as requested by the evaluator; and
Review of any documentary evidence provided by counsel or the parents.

Custody evaluations are very expensive, time consuming and stressful for everyone involved. These are three reasons why the court system strongly encourages parents to work out their differences by agreement.

After the custody evaluation the matter will typically proceed to trial, barring any special circumstances.

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