TYPES OF CHILD CUSTODY AND VISITATION – KEY CONCEPTS
Types of Child Custody and Visitation – a Distinction
California Family Code sections 1.2-1.8 provides an explanation for different types of child custody, distinguishing between “legal” and “physical” custody; “joint” and “sole” custody There is no specific definition of “child visitation,” but Family Code section 3100 defines the jurisdiction of the court to do visitation orders.
Child Visitation is a contact between a child and a noncustodial parent or a contact between a child and a third party. There is another terminology that confusing for the clients in the court forms that means the same as a visitation – “timesharing,” The right of visitation is a component of custody with respect to parents, siblings grandparents, and stepparents. The difference between child custody and child visitation is not more than checking a box on the standard court forms.
Types of Child Custody-Difference Between Legal and Physical Custody
Parents and the court are mostly focusing on the determination of % time each parent has physical responsibility for the children, the legal custody is not less important especially in order to prevent a child abduction or wrongful retention by a parent.
Types of child custody – Legal Custody – Definition and Checklist
a. Sole Legal Custody
There are two types of legal custody Joint Legal Custody sole legal custody and joint legal custody. Under Family Code 3006, sole legal custody is when one parent has “the right and responsibility to make decisions regarding the health, education, and welfare of a child.”
Under Family Code 3003, Joint legal custody is legal custody in which father and mother both have the right and responsibility to make decisions regarding the child’s health, education, and welfare.
In the situation parents are not communicating with one another there is a need to specify a remedy for any deadlock that might take place. One of the possible solutions is for the court to assign to one parent the sole right to make decisions regarding one issue of legal custody and another parent – another. Another solution could be the requirement that parents consult with an expert or psychologist to assist in resolving the conflict.
What are the practical aspects of determining types of child custody in the terms of legal custody?
On the one hand, requesting joint legal custody would not be good enough to solve many potential problems in raising children. On the other hand, because it is difficult to predict what might happen in the future, it is preferable to include in the judgment some general standardized language in some typically arise scenarios. Let me provide a guide for you on what should be included in order to solve problems. For example:
- When one parent is not providing information about children’s medical, educational or other contacts. would be reasonable to include in the judgment that both parents should be listed on all children’s informational forms.
- One parent does not notify another about extracurricular activities or medical appointments. It would be good idea to include an order that parties taking care of such events on bi-weekly or weekly schedule.
- When lower time share parent does not have frequent contact with the child , the order should specify the ability for low timeshare parent to communicate with the children by phone, Skype or any other video/audio system.
- The mother thinks that it better for the child if she change the child last name after she marries or remarries. The court can make an order prohibiting such changes if if was made without consent of the father
- One party regularly travels with the child and does not notify the other parent or provide any contact information during the trip. In order to solve such problem there should be a court order to provide regular contact information for a long trip, or emergency contact information for a short trip. In addition, a minimum amount of advance notice to the other parent of a planned holiday trip must be given. for out-of-state or out-of-the-country travel and should require written authorization from the other parent It is important to look at the family code 3048 (b)(1) evaluating possible risk of abduction.
- One parent wants to move out of the immediate area with the child. The proposed order should require notice of a proposed move with a child. The timing of a move can often unfairly affect the court’s overall determination of the propriety of a move. It is important that, if a move is to occur, the client be provided sufficient notice to be able to bring the matter before a court if the move is to be disputed. According with Family Code 3024, an order would require a be 45-day advance notice. If this notice is included in a judgement, failure of the party intending to move to provide such notice may place the parent who opposes a sudden move in a stronger position in litigation regarding the contested move.
- Both parents have conflicting plans for the summer time off of school. A good solution should be to prepare an order which lets one party have children one year and the other party the next year division by even and odd years. The party who has a first choice needs to notify the other parent at least 2 months before the last day of school what the dates of the vacation are.
Types of child custody “Physical Custody” Definitions.
There are two types of child custody in regard of physical custody sole physical custody and “joint physical custody. Definitions for both “sole physical custody” and “joint physical custody are in family code. . It used to be common for judgments to specify that only one parent had custody, and the other had visitation. However, with the rise of complicated parenting schedules, the complications with custody has developed, especially in move away cases..
Under Family Code 3007, The term “sole physical custody” refers to the child residing with, and under supervision of, a single parent.
Under Family Code 3004, joint physical custody means that both parties will have significant periods of physical custody with the child.
There is another way for joint physical – Truly joint physical custody arrangement Orders are becoming more common. These types of orders are often referred to as “week-on, week-off” which allow equal timesharing.
The truly joint physical custody arrangement and parenting plan should be provided in orders that provide only physical custody should be “joint”. This arrangement provides specific dates and times when each party can exercise custodial time.
Other “Physical Custody” Terminology
The terminology of “primary” physical type of child custody, or even “residential” custody, in relation with “secondary” physical custody is becoming common in many courts. Though these terms have no statutory definition and the term “primary” is only found in Family Code 4054 (d), which concerns regular review of the statewide child support guideline. Similar terms found in statues are “primary caretaker” and “primary physical responsibility” are found in statutes which concern eligibility for public assistance and the strategy for the statewide child support guideline. Terms such as “primary physical custody” are used to resolve unequal timesharing arrangements, which dates and time are allocated during which each party can exercise custodial time.
The Family Code believes that “joint physical custody” orders will provide sufficient specificity which will allow a party to enforce custodial time to the necessary extent.
It also is also better to take into consideration the ease of which a custody order may be interpreted by the police or sheriff in case assistance by law enforcement is needed. An example of this is, if a court order only states that the parties are allowed to have custody on “alternate weekends” providing a start date for the alternation, the law enforcer may have no way to determine which parent is entitled to a weekend with custody. Additionally, if a court order does not specify a time for the exchange, the law enforcer may not enforce the custody exchange, even if the time the assistance is sought is “established” time for exchanges for a period of months or years.
With this in mind, some important areas to consider regarding types of child custody for physical custody:
- Regular, nonholiday timeshare
This is the type of custody that is likely that is most likely to be the most highly contested. This is “regular custody”, a day-to-day arrangement, often during school, without specific reference to holidays or special events. This is the “default” custody.
- Holiday timeshare
In most cases, parties will want to create alternate timesharing agreements during holiday periods, to allow for things like longer custodial blocks with anticipation of visits with extended family or foreign travel.
This is not always necessary such as when the parties share custody in an alternating week arrangement, or when one parent has very limited custody as a due to living far away.
It is important for children to spend time with both parents, if possible, on a weekly basis , it is also equally important to allocate holiday time between both of the parents, so that special occasions can be shared.
For “holiday” timesharing, attornies should discuss which events (e.g., birthdays and school and religious holidays) are most important to each parent and start with the allocation of that time to make sure it is accounted for in the judgment.
- Specific details
It may also beneficial, to specify other aspects of exchanges, to minimize conflict such as.
- Who may conduct exchanges: If there is a history of conflict between parents or other 3rd parties, it may be a good idea to address who may be present in custodial exchanges. An example is that a court order may require that a father’s girlfriend not be present due to a prior conflict. When the conflict lies directly between the parents, it may be best to designate a 3rd party who may or will be present, so as to minimize the potential for problems.
- How exchanges may occur: Parties may opt for a neutral exchange site, such as a fast food restaurant or government building, to avoid conflict. The parties may opt to have exchanges occur in front of their residences to avoid any contact with the other parent. This may be a hard issue to predict and may be critical. An solution would be to get a court order that exchanges take place on the curbside in front of the party’s residence, when the other parent suggests on dropping the children around the corner so that the receiving party can’t witness the drop-off.
- Prohibition on verbal conflict: A prohibition on verbal conflict requires reciting in a judgement, because parties can let emotions get the better of them in regards to contact with their former partners. In Most Cases, a basic admonition, perhaps started by the parties, is an easy way to remind the parents that the custodial exchange is about their children and not them.
- Monitoring: The parent subject to the monitoring cannot pick up the children unmonitored and take them to a monitored location. If the court order states that all contact must be monitored, including exchanges of the children, regardless of the length of time, this problem will be avoided.
- Right of first refusal when custodial parent not available for a period of time: This is important as it allows either parent to have additional time with the minors, if possible if the alternative to leave the minor with babysitters or daycare for a period of time depending on the child’s age and other factors, the time period that could trigger a custodial parent’s obligation to notify the other parent that they will need to hire a babysitter or utilise day-care that could range from anywhere from 4 hours to 24 hours. It may be a good decision to make clear in the relevant provision that the “right of first refusal” does not refer to day-to-day childcare used while a custodial parent is at work.
Our law firms encourage our clients to come to an amicable solution regarding child custody. Mediation could help to avoid high conflict expensive litigation.
Angela is a certified mediator who successfully converted many contested divorces into uncontested saving a hundred thousand dollars for her clients.
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