It’s usually best for all parties in a divorce if matters can be settled amicably, without the need to go to court. That’s especially true when there are children involved. But in cases where parents can’t agree on what happens to their children, it falls to the courts to decide on custody and visitation rights. A judge must rule on which parent the child lives with and when the other parent can have access.
Before your case goes to court, there are various procedures to follow. Both parents must attend court-sanctioned mediation once the papers have been filed; they must also develop a parenting plan on their plans for custody and visitation. A judge will review everything and ultimately turn the parenting plan into a court order.
That’s the idea, at least. But how does everything work in practice? Read on for a comprehensive explanation of how the courts in California decide on an equitable distribution of child custody and visitation rights, what factors influence the verdict, and how you can arrive at the best solution for you and your kids.
While judges in California have a fair degree of discretion, they need to also abide by certain conditions. Under state law, decisions must always be made in the best interests of the child or children. In general, courts must also work on the principle that the child should have frequent and continuing contact with both parents.
Some people criticize the “Best Interest” standard, saying that it’s vague and poorly defined. There may be some truth in that viewpoint, but on some occasions, it’s actually better for everyone that the case is contested in court.
However, parents going to court will do well to remember this: knowledgeable and experienced as they are, judges don’t know your children as well as you do. You risk getting a verdict that doesn’t suit you when you hand over the responsibility to a judge.
Unless you and your ex share your children on a week-on/week-off basis, it’s practically impossible to share parenting precisely 50/50. However, it’s possible to share responsibilities equitably, ensuring that children enjoy a strong relationship with both parents.
One popular arrangement in particular circumstances is for kids to live with their stay-at-home Mom on school days and then spend weekends with Dad (who works full time in the week). Modern-day family dynamics dictate exactly how such arrangements work, and this arrangement may not necessarily apply.
Between yourself, your spouse, your mediator, and your lawyer, you need to develop a proposal for a parental plan. Then, it’s up to the judge to make a practical and workable decision that delivers an equitable distribution of parental responsibilities in the children’s best interests.
For divorcing couples with children, the first decision to make is where each child will live. With sole (or primary) physical custody, children live full time with one parent. Under joint physical custody, they spend allotted time with each parent. In the example of school days with Mom and weekends with Dad, this still counts as joint custody, even though it’s not a 50/50 arrangement. In some cases, the judge may also rule that one child stays with Mom while another sibling lives with Dad.
The courts consider a wide range of factors when deciding on custody, including proximity to school and other family members, the need for stability and continuity, parental track records, co-parenting ability, the wishes of children (depending on their age), any history of negative parental behavior like abuse or violence, and so on.
Divorce is a tough time for adults, but it can be even more challenging for children. One thing that can really help kids is for the parents to develop a routine and stick to it. That may not always be easy, but for your kids’ sake, it’s better if you can. A robust and stable routine gives them some stability at a time of significant change and is always a major consideration in the judge’s verdict.
Once the custody decision has been finalized, the judge can then rule on visitation rights and timings for the non-custodial parent.
Decisions over a child’s health and welfare come under the remit of legal custody. All parents need to make decisions about medical treatment, religion, education, diet, extracurricular activities, and more. Legal custody determines who gets a say in those decisions.
As with physical custody, legal custody may be single or joint. And it’s entirely possible to have a scenario where you have sole physical custody but joint legal custody, for example, when one parent is living overseas.
When determining legal custody, the courts will factor in many of the same considerations as for physical custody.
Most divorcing parents have never drawn up a parenting plan, so it can be helpful to gain some professional guidance on what it should cover. If you’ve been working with a lawyer on other aspects of your divorce, they can also help you with this critical part of your final settlement.
A family attorney will have experience formulating parenting plans, and you can benefit directly from their knowledge and know-how. They can advise you on what to include, ensure you use the correct legal terms, and remove anything that might not be acceptable to the courts.
When you sign your divorce settlement, you’re not just mapping out your future - you’re also mapping the future for your children. For your sake and theirs, it’s crucial to make the right decisions and find a solution that’s fair, equitable, and in line with everyone’s needs. To learn more about child custody, visitation rights, and parenting plans, contact us now for a free consultation.