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Child Custody and Visitation

During a divorce, couples should try to make a custody agreement through mutual consent or mediation. It will be hard on everyone, especially the children, if an agreement cannot be met between the two parties because the courts will be forced to make the decision for them. When the court is forced to make the decision regarding who should get custody of a child, they will consider the child’s best interests.

When determining the best interests of the child, the court looks at a variety of criteria, including:

  • Which parent has been the child’s primary caregiver?
  • What is the health of both parents (mental and physical)?
  • What is the financial situation of each parent?
  • What are the wishes of the child and the parents?
  • Where does each parent live? Would the child have to move?
  • What is the child’s relationship to his or her parents? Siblings? Extended family?

Types of Custody

When custody of a child goes to one parent this is called sole or primary custody. Joint custody, shared custody and split custody all refer to an agreement where both parents have custody of the child. Joint custody can be legal (decision making power over major aspects of the child’s life), physical or both. If parents have joint legal custody, both parties have decision making authority and must agree on decisions about school, religion, medical care, extra-curricular activities, etc. Often, this creates issues for exes because who have a difficult time cooperating with each other. Physical custody can be split equally, or the child may spend more time with one parent and less with the other. The statutory requirement regarding joint legal and physical custody varies depending on jurisdiction.

Parenting agreements include decisions regarding the following:

  • Legal custody
  • Physical custody
  • Education
  • College expenses
  • Health-care
  • Child-care
  • Extracurricular activities
  • Visitation schedule with each parent, including holidays
  • Transportation arrangements
  • Child support payment and payment schedule
  • Alternative dispute resolution (what law would apply if the case of a disagreement or agreement to complete mediation if a dispute arises)

Temporary or Permanent Parenting Plans

This depends on whether the parenting agreement has been filed with the court or if it has been finalized and implemented in the divorce. Temporary plans have been filed with the court and is enforceable regarding child custody and visitation until the plan has been finalized. it is important to file a parenting plan as soon as possible because there can be a time delay between the filing of a temporary order and the final court decree.

Court Mandated Parenting Plans

If the parents cannot agree on a parenting plan, the court may be forced to decide what is best for the child. The court will take each parent’s plan into consideration and create a to which each parent must agree in order for it to be finalized in the divorce decree.

Reasons for the Modification of a Parenting Plan

A change in circumstances after a divorce, commonly the relocation of one parent or a change in financial circumstances, can cause a parenting plan to be modified. The parties must make a motion to the court for a modification that must be confirmed by the court based on the best interests of the child. The court will not modify a parenting plan simply because one of the parents has violated the plan. Commonly, the court will readily modify a plan if there is evidence of abuse (physical/emotional), an inability of the parents to cooperate withe each other, child endangerment, neglect, or a change in a parent’s mental/physical/financial circumstance.

Agreement – Parents may agree between one another (assuming no state agency is involved protecting the child’s welfare) as to a parenting plan; a schedule of which parent will be responsible for the child and when.

Court Ordered – If parents disagree as to a parenting plan, one may file an application for an order from a judge (called an Order to Show Cause). In California, such an application requires that the parties attend mediation at Family Court Services. No lawyers are involved in mediation. The mediator explores areas of agreement and disagreement between the parties, and encourages cooperation. If an agreement is reached, the mediator may write down the agreement so that a judge may sign it and incorporate it as his/her Order. If the parties do not agree to a parenting plan, the mediator may investigate the case further and then suggest a parenting plan in a recommendation to the court.

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