Child Custody and Visitation

Following are some frequent issues that arise in child custody and visitation cases:

1. "Where will our children live?"

Try to reach an agreement with the other parent regarding how you will share time with your children before either parent moves out of the family home, including the days and times of the week each parent will have the children in their care, places of exchange and other details.  Jackie can help you negotiate a child sharing agreement and prepare it in a format that can be filed with the court so that both parents have a schedule they can rely upon.  The amount of time the children spend with each parent can also be a significant factor in setting the amount of child support.  Jackie can assist you with that issue at the same time.

Problems arise when there is no agreement in place.  One parent may attempt to limit the other’s time with the children because they have genuine concerns about how the other parent treats the children, but sometimes it is out of spite or a desire to maximize child support.  One party may continue to live in the family home while the other parent moves into a smaller apartment and there may be a disagreement about whether the children should have overnights in the smaller residence.  The parties may also disagree on whether there should be overnights if there is a history of just one parent helping the children with their homework or taking them to their extracurricular activities and there is concern about whether the other parent will follow through with these activities when the children are in their care.

It can take weeks or sometimes months to get a court date so it makes sense to try to work out an agreement before moving out.  If there is no agreement in place, while you are waiting for your court date, you will have to try to work out child custody and visitations out with perhaps a very unreasonable person who may also be gathering “evidence” against you while you await your court date.  An experienced family law attorney can help you minimize any damage to your case during the time when you are waiting for your court date.

If the parents cannot communicate civilly with each other, or in the case of an abusive household, parties should live separate and apart at the earliest opportunity, even if have not reached a formal child sharing agreement, for the best interests of their children.

In cases where parents cannot reach workable child sharing agreements, it is time to go to court.  The court strives to make orders that assure that the children will have “frequent and continuing contact” with both parents, and orders that reflect the “best interests of the children.”  This does not necessarily mean that the judge will order a “50-50” schedule.  Rather, many factors may impact the court’s decision concerning custody, including the children’s ages, the parents’ work schedules, availability of day care and transportation of the children, whether there are appropriate sleeping arrangements at both households for overnights, and whether there is any history of domestic violence, drug or alcohol abuse, or evidence of alienation of the children by a parent.

Prior to a child custody hearing, the parents are required to attend mediation, where they have an opportunity to explain any concerns they may have about their children to a court-appointed child custody recommending counselor who will prepare a written report for the judge and the parents.  Some counties, including Sonoma County, are “recommending counties,” meaning the child custody recommending counselor makes a recommendation to the judge of what they have concluded would be an appropriate child sharing plan for the judge’s consideration.  If custody continues to be disputed and/or if more information and/or psychological testing is needed, a child custody evaluation may be ordered.

The court can also schedule review hearings to make sure that child sharing plans are working smoothly and make adjustments if needed.

2. "What is the difference between "legal custody" and "physical custody"?

“Joint physical custody” means the parents will share “significant periods” of custodial time in a manner that assures the children will have “frequent and continuing contact” with each parent.  However, it does not mean the child must split their time equally between each parent.

If the judge grants one parent primary physical custody of the children after a final custody determination, that parent has the presumptive right to relocate the children, but  the court can prevent the move-away if it would be detrimental to the children.   Parents should consult with an experienced family law attorney if they want to relocate or the other parent has said they want to move away.

“Joint legal custody” means the parents will share the right and responsibility to make decisions relating to the health, education and welfare of their children.  This does not mean the parent have to consult each other over every decision; either parent may act alone may make appropriate decisions for the child, such as taking the child to a doctor’s appointment.  However, if there is concern over a parent’s ability to make appropriate decisions on behalf of the child, the judge can make an order that requires the joint consent of the parents in certain circumstances.  Examples include changing a child’s school, having the child seen by a psychiatrist or other mental health care professional, changing a child’s residence to another county, allowing travel out of the country, etc.

3. "How can I get a supervised visitation order?"

If there is convincing evidence of domestic violence, drug or alcohol abuse, or related serious problems, the court can limit the parent who is engaging in that behavior to supervised visitation, sometimes for only a few hours a week.  The parent who is under the supervised visitation order is normally ordered to pay for the supervision, which is typically in the range of $12-25 per hour for a professional supervisor.  Often the court will allow the parties to mutually agree on a family member or friend to do the supervision, thus avoiding the fees.   The supervised visitation order will stay in place for as long as the judge deems necessary for the protection of the children.  The supervisor can report back to the court about how the visits are going.  If the parent who is subject to the supervision order proves that he or she has completed any court-ordered drug or alcohol treatment, anger management, parenting classes and/or therapy, the judge can terminate the supervision order.

The process to ask for a supervised visitation order is either to file a Request for Order and set a hearing date (which can take a few weeks or even months), or apply for a Restraining Order which can be granted very quickly if the judge finds there has been abuse.

4. "My child wants to 'talk to the judge.' Will the judge talk to my child and take his/her wishes into account with respect to where they will live and how much time they will spend with each parent?"

Your child may be allowed to tell the judge his or her preferences regarding child custody and visitation if the court finds the child “is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation.”

If your child is 14 years of age or older and wants to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interests.

A child who is less than 14 years of age may be allowed to address the court regarding custody or visitation if the court determines that is appropriate and is in the child’s best interests.

The court will decide whether the child will testify in court with the parents, attorneys and any others present or whether the testimony will be “behind closed doors” in the judge’s chambers with a court reporter present, at which time the judge can ask the child about their preferences, including questions prepared ahead of time by the parents or their attorneys.

In considering whether or not allowing a child to address the court is in the child’s “best interests,” the court can consider whether the child is mature enough to understand the nature of giving testimony, as well as whether the child will be harmed emotionally if he or she is allowed (or not allowed) to give testimony about their preferences.

If the court decides that a child should not testify, the can still provide an alternate means to make sure your child is heard, such as having your child interviewed by a the child custody recommending counselor in a mediation session with Family Court Services.  The child custody recommending counselor can provide the child’s input in a report provided to the court and to the parents.  The court can also appointment minor’s counsel to represent the child.  The court can order that a child custody evaluation be done.

5. "The father/mother is never on time to the exchanges of our children. What can I do?"

Request the court to make an order that if the other parent is late a specific amount of time (for example, 30 minutes), the visit is cancelled.  This may be small consolation for parents who live a substantial distance from each other and the child sharing schedule requires both parents to travel a substantial distance to a midway point (halfway between their respective residences) to exchange the child.  If a parent is repeatedly late or a “no show,” request an order that the parent provide all of the transportation for future visits.

6. "My child does not want to go to his mother's/his father's. Do I have to make them go?"

If there is a court order allowing the other parent to have time with the child, every effort should be made to comply with the order, including encouraging the child to spend time with the other parent and taking them to the visits.  Both parents should do everything possible to foster a good relationship between their children and the other parent because it can damage the child’s emotional health if they are subjected to the parents making disparaging remarks about each other, blaming each other for the divorce, telling the child the other parent is “bad” and they should not go with them, etc.  That being said, when dealing with a teenager, it can become physically impossible to force a child to go to the other parent’s, either because they don’t want to follow the stricter rules at the other parent’s home or because there is abuse in the other household.  Make sure the court knows you are doing everything possible to comply with order.  Consider requesting the court to appoint minor’s counsel for your child so they have their own attorney they can share their concerns with.  The child’s attorney can relay the child’s wishes to the court as well as provide the court with information on what type of child sharing arrangement would be in the child’s best interests.

7. "The other parent has a problem with drugs and/or alcohol. How can I protect our children?

Alcohol and drug abuse problem, including prescription drug abuse, can ruin a family and can have disastrous long-term impacts on children.   Courts pay particular attention when there is evidence that a parent becomes intoxicated while the children are in their care — especially if the incidents are recent (versus being months or years ago).  There needs to be substantial independent corroborating evidence of the drug or alcohol abuse, which can include police reports, criminal records, reports by child protective services or other social welfare agencies, courts, medical facilities, as well as statements of witnesses who personally saw/heard the intoxicated person behaving in an abusive or reckless manner.

A parent in the grip of substance abuse can end up threatening suicide, make threats against the family, drive while intoxicated with children in the car (which can also result in a criminal charge of child endangerment), neglect the children, or abuse a child or spouse.

When alcohol and/or drugs are a problem, and the court has found that there is the “habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol,” the judge can made orders to help resolve the problem and protect your children, including:

— The parent can be ordered to  undergo a drug and alcohol assessment.  The parent is interviewed in detail and assessed for substance abuse problems.  The assessor’s report can be provided to the court for the judge’s review.  The parent can be ordered to follow the recommendations in the report, which may include completing an alcohol or drug treatment program and follow-up treatment.

— The parent can be ordered to attend Alcoholics Anonymous or Narcotics Anonymous meetings and provide proof of attendance.

— The parent can be ordered to provide regular alcohol or drug tests to you or your attorney.

— You can request an order allowing you to demand that the other parent take an alcohol or drug test within a specified period of time from the time you request the test to prove they are sober prior to visitations with your children.

— If the problem is prescription drug abuse (such as Oxycodone, Valium, Vicodin), the court can order the parent to produce reports from their physicians and pain management providers identifying the prescriptions, proper dosage, and to produce tests showing the levels of prescribed medications that are being used.

— The court can order the other parent to have only supervised visits until they have a significant, stable period of sobriety.

If you are the parent who has been found to have a substance abuse problem, the best course of action is to comply with the court’s orders faithfully as that is your best chance of resuming a normal relationship with your children.

8. "What is co-parent counseling?"

Co-parent counseling is not marriage counseling.  It is a specialized type of counseling that helps parents who are no longer together to learn to communicate more effectively and civilly and to co-parent their children peacefully.  The co-parent counselor can help the parents develop a timeshare schedule (days and times of the week when the children will be with each parent, place of exchanges, who can be present at the exchanges, etc.), and help the parents reach agreements on how they will make health care, education, religious and other important decisions affecting their children.  The counselor can also help parents understand the effect of divorce on their children, as well as guidance for appropriate protocol for a parent to properly introduce a new “significant other” to the children.  In cases where parents are able to reach an agreement, the co-parent counselor can prepare a written agreement for the parties which can be filed with the court.

Parents can mutually agree to participate in co-parent counseling.  A judge also has the power to order the parents to attend sessions with a co-parent counselor and the co-parent counselor can provide input to the judge and to Family Court Services.

Where both parents are motivated to resolve their differences outside of court, co-parenting counseling can be a very effective tool.

9. "What rights do grandparents have?"

Grandparents have the right to ask for orders allowing them to see their grandchildren and the court has the discretion to allow the visitation when it is in the best interest of the grandchild.

When a marriage or relationship ends, it can cause a rift in the entire family structure, pitting one family against the other.  When this happens, one or both parents may decide that their children should have not have contact with the other parent’s relatives, including the grandparents.   They might feel that the grandparents get overly involved, that the grandparents blame them for the end of the marriage or relationship, that the grandparents view them negatively, and they worry this will carry over to their contact with the grandchildren.

Parents normally have the ultimate right to parent their children as they see fit, as long as they are not abusive.  However, courts are mindful that children can benefit by having relationships with extended family members, including grandparents, and will support those relationships when they are in the best interest of the child.

While a divorce case, a paternity case, or other type of custody case is pending between the parents of a minor child, a grandparent may file a request with the court asking to be “joined” to the case and to be allowed to have visitation with their grandchild.  The judge can grant reasonable visitation to a grandparent if it is in the best interest of the child.  However, if both of the child’s parents object to the visitation, this raises a “rebuttable presumption” that grandparent visits would not be in the child’s best interest.  The grandparent is then be faced with having to present evidence to the court that would overcome the presumption.

If there is no court case pending between the parents but the parents are separated, the grandparent can still file a separate action to request visits with their grandchild.  The grandparent would need to show there is a preexisting relationship between them and their grandchild, that they have a substantial bond with the child and that visitation would be in their grandchild’s best interest.  However, if the parents object, the grandparent would (again) be in a position where they would have to prove to the court that it would be in their grandchild’s best interest to allow the visits.