Child custody is one of the most complex areas of family law. One reason things often get confusing to parents is because it’s easy to get caught up in the legal terminology and trying to figure out what to do and when to do it.
Here are 8 need to know basics related to child custody and visitation:
1)Custody is NOT automatic
Despite what you may believe is the best custody/visitation arrangement for your children, unless you and the other parent agree on these arrangements, custody is not automatic.
When a child’s parents are unmarried, unless a court action already exists related to custody/guardianship of your child, parents “technically” don’t have any legal/enforceable rights to that child. In order to establish these rights, a court action establishing parentage must be filed-this must be done even if the parents both signed the child’s birth certificate or voluntary declaration of paternity. This often becomes problematic for fathers in particular, because unlike mothers, paternity isn’t absolute (i.e. mothers can dispute paternity of a father, but because mothers carry and give birth to their children, fathers likely have no grounds to dispute maternity). For this reason, it’s important for parents to establish parentage as soon as possible after a child is born.
Even when a child’s parents are married, custody is still not simple. When parents separate or divorce, neither parent is any more entitled to custody of the children than the other until the court makes orders. Because custody is free for all before the court makes orders (either parent may keep the children with them, pick them up from school, etc.) many families end up fighting over the kids unnecessarily, causing disruption in daily routines and preventing stability for the children involved. For this reason, it’s important to request specific custody orders simultaneously when filing for divorce or as soon as possible thereafter.
2.) Legal Custody v. Physical Custody
Many different terms are used to describe different custody arrangements. However, in California, there are two types of child custody you must understand:
1. Legal Custody
2. Physical Custody
Legal Custody means who will make important decisions for your children such as health care, education, and
welfare, extracurricular activities, etc.
Physical Custody means who your children will live with.
3.) Custody/Visitation is not based on Gender
Contrary to popular misconception, child custody and visitation orders are not based on the gender of the parents. While it is true that often mothers are granted custody, if a father wants custody, he can be granted custody as well. I see it happen every day, so never assume that just because you’re the mom, you’ll automatically get custody of your children, and never assume that just because you’re the dad, that you can’t have custody.
4.) Child custody is determined by what’s in the child’s best interest
When the court makes initial child custody orders, it will consider many different factors including, but not limited to:
- The child’s existing living arrangements, schedule, and any potential effects significant change to such arrangements will have on the child.
- The parents’ relationships with the child.
- The parents’ lifestyles including abhorrent and criminal behavior or allegations of such.
- The health of the parents (both physical and mental).
- The living situation of the parents and their ability to provide for the child.
- The parents’ attitudes towards the other parent’s rights to the child.
- What the child wants
- The child’s age and gender
5.) It’s a process
Once the court gets involved in your family law matters, it’s a process – things do not happen overnight. While temporary orders may be issued shortly after your case begins, getting permanent orders is a process. How long the process takes depends on you and the other parent, whether you’re willing to make compromises to reach an amicable agreement, or whether you end up in a lengthy court battle.
6.)Payment of support is irrelevant
If your child’s other parent refuses or is unable to pay child support, there are several remedies for this problem. However, not allowing that parent to have custody/visitation is not one of them. Regardless of whether a parent pays support or not, your child is still entitled to have a relationship with them and custody orders must be followed.
7.) Settle if possible
Many mistakenly believe that settling their custody dispute is a bad thing because they would rather “win.” The reality is – there’s no such thing as really “winning” a custody case. Asking the court to make decisions related to your family is risky because you will likely not get 100% of what you want. To get just 1/2 of what you want will likely cost you a lot of time and money required to build the case. It’s important to know from the beginning what’s most important, what are your deal breakers, and what you’re willing to compromise on. Take those things and try your hardest to reach a settlement in lieu of a court battle. Judges are strangers. They don’t know anything about you, your child’s other parent, or your children. The only thing they do know about you is what is presented to them as evidence. Quite frankly, we all know that the evidence presented to the court is not always the best reflection of the true circumstances or complete facts. Decisions have to make sense to the court and be as fair as possible. Fair to them and you will likely not be identical.
8.) Be proactive
As mentioned before, going through the court system is a process – often a lengthy one. For this reason, proactivity is the best activity. However, many people often wait until there’s an urgency to legally handle their custody disputes (i.e. the other parent won’t allow them to see their child). This leads to unnecessary stress and disruption in the lives of the children involved. Request custody orders as soon after you and the other parent separate as possible or before a major dispute arises. Try to reach an agreement with the other parent when you’re on cordial terms rather than when you’re in the midst of a storm.
And ALWAYS remember: When dealing with custody/visitation disputes, this is not about YOU, it’s about what’s best for your child.
