Custody & Visitation

Every family and every child is unique. Therefore, your particular facts and circumstances must be carefully evaluated. Religious and cultural considerations may be important in one case, but not another. Some cases may involve allegations of substance abuse by one or both parents, or allegations of domestic violence. Some cases may involve consideration of special needs of one or more children, while others may not. Some cases may involve specific health issues presented by one or more children, while others may not.

Despite the uniqueness presented by every custody dispute, the California Family Code provides a presumption which applies to all custody matters. Specifically, it is presumably in every child’s best interests to maintain frequent and continuing contact with both of their parents. Contrary to popular belief, this does not necessarily mean a “50/50” parenting plan. Some courts may find that an every-other-weekend parenting plan still constitutes frequent and continuing contact for purposes of satisfying the family code presumption, while others may not. With the technology now readily available to us, like Facebook, Skype, or other similar programs, the specific definition of what constitutes “frequent and continuing contact” becomes even more blurred. Therefore, while the California Family Code does apply this blanket presumption, any specific definitions remain difficult to obtain. Ironically, the broadness of the California Family Code’s presumption underscores how unique every case involving custody becomes.

If a party files a motion seeking custody orders, the mediation process is mandatory and must be completed prior to the initial court hearing, or else the family court will refrain from making any orders. While the mediation processes vary from county to county, the underlying goal is the same: the court will appoint a mediator to work with the parents and assist them in developing a parenting plan. One of three results will be obtained: (1) full agreement; (2) partial agreement; or (3) no agreements. Depending on the county, the mediator may write a report with recommendations for the court to consider at the initial court hearing. However, if the mediation is “confidential”, no report will be provided to the court, except a report reflecting agreements reached between the parents.

There are two types of custody/visitation orders which can be made by the family court: temporary custody orders and permanent custody orders. Temporary custody/visitation orders are all orders made by a family court in the “volume calendar” setting, short of trial. For instance, when a motion seeking custody/visitation orders is filed, an initial return hearing date is set. That initial return hearing date is NOT a trial. Instead, it is a court appearance on the “volume calendar”, which is usually set with many other cases on the same calendar. The court will typically provide your case with about 15 minutes of attention, and then make temporary custody/visitation orders pending trial.

Temporary custody/visitation orders may be modified by making a showing that the “best interests” of the child/children will be served by modifying the temporary orders. Of course, what is in the “best interests” of one or more children in any given case can be a highly contested issue. If either parent is dissatisfied with the court’s temporary custody/visitation orders, he/she may request the court set the matter for a trial/evidentiary hearing.

Contrary to temporary custody/visitation orders, if a case proceeds to trial, and the family court considers evidence, including, but not limited to, testimony from one or both parents, expert testimony, and/or documentary evidence, the family court’s rulings after trial constitute final/permanent custody orders. Final/permanent custody orders are more difficult to modify than temporary custody orders. To modify a permanent custody/visitation order, the requesting party must establish a significant change in circumstances which indicates that a different arrangement would be in the child/children’s best interest. This is a more difficult showing to make.

Lastly, there are two different types of custody which a family court will order. The above discussion revolves solely around physical custody orders. In addition to physical custody orders, a family court will make legal custody orders as well. Generally, joint legal custody vests both parents with the right and responsibility to participate in the decision-making process in regards to all non-emergency major decisions related to the child/children’s health, education, and welfare. However, orders of legal custody can vary widely from one case to the next.

The process of seeking and obtaining custody/visitation and legal custody orders vary widely from county to county. If you find yourself facing a custody dispute, it is imperative that you locate a knowledgeable attorney who is familiar with the process and capable of effectively representing your interests, and those of your children, in court. The Law Office of Kevin M. Cecil has over 13 years of experience handling these issues, and a proven track record of doing so effectively and with utmost client satisfaction. If you need guidance navigating this process, you have found the right place.