Custody and Visitation
(1) The BEST INTERESTS OF THE CHILD is the basis upon which the issue of custody and visitation is generally decided. “Factors Determining the Best Interest of Child. [are] in making a determination of the best interest of the child any proceeding described in section 3021, the court shall, among any other factors it finds relevant, consider all of the following:
(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking custody against any of the following:
(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
As a prerequisite to the consideration of allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this subdivision, abuse against a child means child abuse as defined in section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means abuse as defined in section 6203 of this code.
(c) The nature and amount of contact with both parents, except as provided in section 3046.
(d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this subdivision, controlled substances has the same meaning as defined in the California uniform controlled substances act, division 10 (commencing with section 11000) of the health and safety code.
(e) (1) Where allegations about a parent pursuant to subdivision (b) or (d) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody of that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, date, place, and manner of transfer of the child as set forth in subdivision (b) of section 6323.
(2) The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.” FC 3011
Legislative findings and declarations.
(a) the Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.
(b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolve their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to affect this policy, except where the contact would not be to the best interests of the child, as provided in section 3011.
(c) Where the policy set forth in subdivision (a) and (b) of this section are in conflict, any court’s order regarding physical or legal custody or visitation shall be made in a manner that insures the health, safety, and welfare of the child and the safety of all family members.” FC 3020
(2) Frequent and continuous contact with both parents is a goal of the law.
(3) Shared custody is a goal of the law with the Best Interests of the Child always being paramount. “There is a presumption, affecting the burden of Proof, that joint custody is in the best interest of a minor child, subject to Section 3011, where the parents have agreed to joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child. FC 3080
(4) If you believe that there may be any dispute over custody and visitation, you are advised to keep a calendar of events and times. In this calendar, you should have a clear indication of when the child or children are with you and when with the other parent. You should also note any problems, disagreements, arguments, domestic violence or any other matter that may have an impact on the Best Interests of the Children.
(5) “Joint Legal Custody means that both parents shall share the right and the responsibility to make the decisions relating to the health, education and welfare of a child. “ FC 3003 Generally, the parties have joint legal custody; but sole legal custody may be ordered if it is in the best interests of the child because there has been domestic violence, child abuse or for other reasons such as alienation of the child from the other parent or reluctance to share frequent and continuous contact.
(6) “Sole Legal Custody means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” FC 3006
(7) “Joint Physical Custody means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to [FC] Sections 3-11 and 3020.”
(8) “Sole Physical Custody means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.” FC 3007
(9) Regarding physical custody, many times the term physical custody is not used. Timeshare is a term used for physical custody. Primary physical custody and secondary physical custody is used.
(10) Who has or who does not have physical custody becomes important in move-away cases. The custodial parent may be allowed by a court to move-away with the child with less difficulty than where there is joint physical custody. There is a presumption that the parent with physical custody may move away. The non-custodial parent needs to show prejudice to the child in the move away to be allowed to then argue that it would be in the best interests of the child to disallow the move away. If there is joint physical custody, the court needs to make a finding of what is in the best interests of the child to allow or disallow a move away.
CUSTODY
The California Legislature has declared that it is public policy in this State to assure minor children have frequent and continuing contact with both parents after the parents have separated, except where the contact would not be in the best interests of the child.
After separation, the parties may agree on a plan to share time with their children. If they cannot agree a judge may make that determination, the primary concern being the health, safety and welfare of the children. The court will also consider which parent is more likely to allow the children frequent and continuing contact with the other parent.
Regardless of custodial arrangements, during the transition process of a divorce and afterwards, children need to feel loved and protected by both parents. They should not be asked to take sides or to choose with which parent they want to live. They need to be reminded they are not the cause of the marriage break-up. Children need assurance that their parents will not abandon them and the treasured relationships with both parents will not be lost.
A negative or derogatory remark made about one parent by the other, or by third parties, within earshot of the child is very damaging. As a product of both parents, a verbal attack by one parent on the other is felt by the child as an attack on the child himself. Children feel the effect of a family break-up very deeply, although they may not express it. They do not want to hurt either parent by speaking out. Allowing children to express their feelings to a counselor can frequently prevent behavioral problems after their parents separate.
In negotiating a custodial plan that maximizes the amount of time each parent spends with the children, the actual days and times each parent can devote to the children should be considered, taking into account work schedules, commuting time and business travel, as well as the children’s school hours and extra curricular activities. (Just as California law makes no preference between a man and a woman in awarding custody, it does require that both father and mother financially support their children.)
Should you need advice or representation in a custody or dissolution proceeding, please contact our office to set up a consultation. We look forward to assisting you and your family through this transition of divorce and separation.
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619-459-4010
Don Starks, Esq.
Certified Family Law Specialist
The State Bar of California
Board of Legal Specialization
5353 Mission Center Road, Ste. 202
San Diego, CA 92108
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