In the State of California, family court judges have broad discretion in making child custody and visitation orders. Judges are obligated to apply the “best interests of the children” standard when making orders related to children.
The standard is purposefully broad because there are so many different factors that could be considered when making child custody and visitation orders that the legislature did not want to limit the Court’s ability to consider all types of information.
A California Court has the authority to make orders related to the physical custody of the children as well as the legal custody of the children.
Physical custody is basically a determination as to where the children will primarily reside. When making physical custody orders, the Court will decide whether a parent should have sole physical custody or whether the parents should share joint physical custody.
While physical custody is what most parents focus on, it is often a label without much meaning, since a parent with sole physical custody could still have to facilitate visitation between the children and the other parent.
Therefore, sole physical custody does not necessarily mean that one parent will have 100% of the time with the children. An award of physical custody to one parent is often thought of to be more appropriately considered “primary physical custody”—meaning the parent where the children primarily reside.
If the court orders joint physical custody, it usually means that both parents have significant periods of parenting time with the children. What constitutes “significant” is entirely subjective—it doesn’t necessarily have to be a 50/50 parenting timeshare. It could be a 60/40 timeshare, 70/30, 80/20 or whatever the Court determines is “significant.”
Legal Custody is essentially decision-making power. The Court will determine who has the right and responsibility to make decisions related to the health, education and welfare of the children. This can include decisions related to enrolling and disenrolling children from school, choosing the children’s medical doctors or commencing or ending mental health services.
When making legal custody orders, the Court will generally decide whether sole or joint custody is appropriate. Sole legal custody means that one parent makes all of the decisions related to the health, education or welfare of the children. Joint legal custody means that the parents must consult with each other before making decisions related to the health, education and welfare of the children. Sometimes the Court can create a hybrid legal custody order, where the parents have joint legal custody on some issues and one parent has sole legal custody on a specific issue.
Visitation orders are akin to making a parenting schedule. The types of parenting schedules can vary significantly depending on each individual family.
The schedule can be based upon the historical parenting responsibilities, the children’s school schedules (if they are of school age), the parent’s work schedules and/or many other factors.
Visitation orders can also include determinations as to whether a parent’s visitation is unsupervised or whether it should be supervised by another individual (either a professional visitation monitor or a non-professional visitation monitor).
Supervised visitation orders often arise when a parent has exhibited behavior which raises concerns about the parent’s ability to keep the children safe. Such behaviors can arise when allegations are made relating to child abuse, domestic violence, alcohol or substance abuse or child abduction, to name a few.
Want to learn more about the types of child custody and visitation orders? Schedule a consultation to meet with an attorney at Happ Law Group P.C.
In the beginning of your family law case, if you want the Court to make orders related to child custody and visitation, you will need to file a Request for Order. A Request for Order is a motion that tells the Court that you want a hearing for the judge to make child custody and visitation orders.
In the County of San Diego, after filing a Request for Order, the Court will give you two dates:
The court hearing date is your date to meet with the judge, who will make your child custody and visitation orders.
In Family Court Services mediation, the two parents will meet with a Family Court Services counselor (without their attorneys, if they have attorneys) to discuss what child custody and visitation orders are in the best interests of the children. The Family Court Services mediation will normally be scheduled before the hearing date. At the conclusion of the Family Court Services mediation appointment, the Family Court Services counselor will create a Family Court Services Report.
The Family Court Services Report will contain either an agreement or a recommendation. If the parents reach an agreement in Family Court Services mediation, then the Family Court Services counselor will draft an agreement, which the Court will review and likely adopt as the order of the Court at your hearing. If the parents are unable to reach an agreement in Family Court Services mediation, then the Family Court Services mediator will draft recommendations as to what child custody and visitation orders would be in the best interests of the children, in the opinion of the Family Court Services counselor. The Court will then review the Family Court Services counselor’s recommendations at the hearing and hear argument from each parent (or their attorneys) as to whether the recommendations should be adopted as is, or modified.
After the Court verbally makes its decision at the court hearing on child custody and visitation orders, a Findings and Order After Hearing will be prepared by one of the attorneys. Once approved and signed by the Judge, the Findings and Order After Hearing will be the document you reference for your child custody and visitation orders.
Want to learn more about how to request child custody and visitation orders? Schedule a consultation to meet with an attorney at Happ Law Group P.C.
Interested in exploring your options for child custody and visitation orders? Book a consultation to discuss your case with an attorney at Happ Law Group P.C.
There are some factors that the court will take into consideration when making child custody and visitation orders and there are some factors that the court will not take into consideration.
When making child custody and visitation orders, the court must do what is in the best interests of the children. To determine what child custody and visitation orders are in the children’s best interests, the court can consider a variety of factors.
The court will consider factors such as nature and amount of contact with each parent, stability and continuity of environment, allowance of frequent and continuing contact, a parent’s history of a child, spouse or cohabitant, a parent’s history of drug or alcohol abuse and the children’s wishes.
Want to learn more about what the Court considers when making child custody and visitation orders? Schedule a consultation to meet with an attorney at Happ Law Group P.C.
When making child custody and visitation orders, the court won’t consider the following:
These guidelines highlight the court’s focus on the child’s best interest, excluding factors that don’t directly affect parenting capabilities.
Learn more about what the court won’t consider when making child custody and visitation orders in our blog.
Child custody and visitation is a complicated area of family law which requires specific expertise in California family law. Since the Court has broad discretion to make orders which are in the “best interests of the children” is important to have an attorney who can advise you on what the appropriate type of child custody and visitation request is to make and what the appropriate factors are to argue to the Court (and the Family Court Services counselor) in support of your request.
Interested in understanding child custody and visitation better? Book a consultation to discuss with an attorney at Happ Law Group P.C.
What Is Physical Custody?
Physical custody is basically a determination as to where the children will primarily reside.
What Is Legal Custody?
Legal Custody is essentially decision-making power.
What Types Of Child Custody Orders Can Be Made?
The Court can make child custody orders that give sole or joint legal or physical to one or both parents.
What Types Of Visitation Orders Can Be Made?
The Court can make a variety of parenting schedules as part of the visitation order. The Court can also make orders regarding whether a parent’s visitation should be supervised or unsupervised.
What factors will the court consider in making child custody and visitation orders?
The Court will consider factors such as contact with parents, stability and continuity of environment, a history of physical abuse, history of drug or alcohol abuse, history of or current mental illness and the children’s wishes.
What factors won’t the court consider in making child custody and visitation orders?
The Court won’t consider a parent’s religious preferences, a parent’s disability (provided that it doesn’t impact that parent’s ability to safely care for the child), a child’s wishes if that child is not of sufficient age or maturity, or absence of a parent due to a military deployment, to name a few.
DISCLAIMER: This information is made available by Happ Law Group P.C. for educational purposes only as well as to provide general information and a general understanding of California law, not to provide specific legal advice. If you are in need of advice about your specific situation, you should consult with a California family law attorney.
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