Some Information About Child Custody
Some states (NOT ALL) allow children of sufficient maturity to have an impact upon the determination of custody and visitation by considering their desire to reside with one parent or the other. Judges will listen closely to the child’s stated preference and his or her reasons. The child does not have the final say and it will be the judge’s decision just how much consideration is to be given to the child’s wishes, depending on age, maturity, and the quality of the reasons. The overriding question will always be: what is in the child’s best interest?
Child support payments are usually made until children turn 18, or 19 if they are still in high school full time, living at home, and can’t support themselves. Parents may agree to support a child longer. The court may also order that both parents continue to support a disabled adult child that is not self-supporting.
You can ask the judge to make a child support order when you:
- Get a divorce, legal separation, or annulment;
- Establish parentage; or
- Get a domestic violence restraining order.
Parents who have signed a voluntary declaration of paternity, OR are married and don’t want to get legally separated or divorced can also ask for a child support order when they file a Petition for Custody and Support of Minor Children (form FL-260).
Either parent can later ask the judge to change the amount if the situation changes. Parents can also ask the judge for help collecting (enforcing) a support order.
WHAT IS THE DIFFERENCE BETWEEN CUSTODIAL PARENT AND NON-CUSTODIAL PARENT?
The custodial parent is the term that is used for the parent that has primary physical custody of a child. Typically the child resides with the custodial parent.
The term non-custodial parent is used for the parent that has the child for a lesser amount of time. Typically the child does not reside with the non-custodial parent except during the time that the non-custodial parent exercises his/her visitation right with the child.
Typically, the child is either with the custodial parent or the non-custodial parent but not both. This arrangement comes as a result of the separation of the parents and both parents maintaining separate residences. The child resides with the custodial parent most of the time and the non-custodial parent spends time with the child during periods of child visitation. This way, both parents get to spend time with the child despite having separate residences.
DO THE WISHES OF A CHILD HAVE ANY INFLUENCE IN CUSTODY DECISIONS?
Some states (NOT ALL) allow children of sufficient maturity to have an impact upon the determination of custody and visitation by considering their desire to reside with one parent or the other. Judges will listen closely to the child’s stated preference and his or her reasons. The child does not have the final say and it will be the judge’s decision just how much consideration is to be given to the child’s wishes, depending on age, maturity, and the quality of the reasons. The overriding question will always be: what is in the child’s best interest?
WHAT IS CHILD VISITATION AND A “PARENTING PLAN”?
Custody and visitation are considered at the same time since the factors and circumstances taken into consideration by the court in making these determinations are essentially the same.
The term “child visitation” refers to the time when the non-custodial parent has the right to be with the child. The custodial parent’s right to be with the child is often subject to the non-custodial parent’s right to visit with the child.
The term “parenting plan” refers to the agreement between the parents or the court order which defines provisions for custody and visitation. It determines whether one or both parents has the ability to make decisions regarding the health, education and welfare of the child. The parenting plan also defines when the child is to be with the non-custodial parent.
WHAT IF BOTH PARENTS AGREE ON CHILD CUSTODY AND VISITATION?
This is the ideal situation. Absent extenuating circumstances (such as abuse or neglect), the parenting plan agreed upon by both parents becomes the parenting plan. If the issue of child custody and visitation is not raised in a court action, the agreements worked out between the parents is left undisturbed. The agreement does not have to be reduced to a writing signed by both parents but a written, signed parenting plan is preferable for future reference. In addition, a written, signed parenting plan can typically be entered as a Stipulation between the parties and then issued as a court order for future enforcement purposes.
WHAT IF THE PARENTS DISAGREE ON CHILD CUSTODY AND VISITATION?
Most states require both parents who are unable to reach an agreement on the issues of custody and visitation to participate in a mediation session to work out such a plan. In the mediation session, both parents meet with a third-party, typically an experienced attorney or social worker, to discuss relevant factors in an effort to reach an agreement. Many contested issues of custody and visitation can be resolved in a mediation session and this session typically results in an agreement which then can be presented as a Stipulation for issuance as a court order.
Should mediation of custody and visitation disputes fail, the parents can then pursue litigation of unresolved issues. A court hearing will be conducted and evidence presented. Often expert witnesses, such as psychologists and licensed social workers, will be called to present evidence for consideration by the court. After the court has received such evidence, it is then in a position to make an order regarding custody and visitation.
Custody and visitation disputes can be very difficult and expensive to resolve. An agreement by both parents is the preferred course of action since a joint parental decision is more likely to be followed than if an outsider makes a decision for them.
CAN EXPERT WITNESSES BE USED IN CUSTODY BATTLES?
Because of their lack of familiarity and formal training in the field, often times judges will put much stock in the testimony and written recommendations of experts in custody disputes. Experts in the field of child psychiatry or psychology or mental health will perform custody evaluations of the family with written conclusions and recommendations to the court based on their observations. The evaluations will cover the activities of each parent, the home life, parenting skills, relationships to the child, and the child’s feelings and preferences. One of two possible outcomes will occur: the recommendation of the professional will be accepted by all parties (judges, lawyers, parents) or everyone goes off to court to let the judge make the decision
DOES RELIGION ENTER INTO THE DETERMINATION OF CHILD CUSTODY?
No — theoretically. Whether one parent practices a religion or not is normally not a factor in deciding custody, unless there is evidence of potential or present harm to the child, such as if the parent engages in unusual “cult” activities or has an unorthodox lifestyle that might likely put the child in danger or be detrimental to the best interest of the child.
CAN EXPERT WITNESSES BE USED IN CUSTODY BATTLES?
Because of their lack of familiarity and formal training in the field, often times judges will put much stock in the testimony and written recommendations of experts in custody disputes. Experts in the field of child psychiatry or psychology or mental health will perform custody evaluations of the family with written conclusions and recommendations to the court based on their observations. The evaluations will cover the activities of each parent, the home life, parenting skills, relationships to the child, and the child’s feelings and preferences. One of two possible outcomes will occur: the recommendation of the professional will be accepted by all parties (judges, lawyers, parents) or everyone goes off to court to let the judge make the decision
DOES RELIGION ENTER INTO THE DETERMINATION OF CHILD CUSTODY?
No — theoretically. Whether one parent practices a religion or not is normally not a factor in deciding custody, unless there is evidence of potential or present harm to the child, such as if the parent engages in unusual “cult” activities or has an unorthodox lifestyle that might likely put the child in danger or be detrimental to the best interest of the child.
CAN CUSTODY RIGHTS BE MODIFIED?
Absolutely. You can go back to court to change a custody order if there is a substantial change of circumstance that has a significant, adverse effect on the child (such as visitation problems, erratic behavior, change in employment, residence, or marital status). Because we live in a highly mobile society, it is strongly recommended that you periodically evaluate the parenting plan. The courts recognize that many factors can be altered over a period following divorce and, though reluctant to change the parenting custody plan, the courts will do so if it is clearly necessary and in the best interest of the child.
Alternatively, the ex-spouses can voluntarily modify the last order by agreeing to changes between themselves. If there is a departure from the last custody order, it is best to put the new current changes in writing; oral agreements are difficult to enforce.
WHAT QUALIFIES AS A “MATERIAL CHANGE OF CIRCUMSTANCES”?
This could be the remarriage of one of the parties. Another is that the custodial parent wants to leave the state. One more is a change of health (such as a progressively chronic illness or disease) or economic circumstances (such as losing a job) that will effect the child. Finally, a change in the custodial parent’s lifestyle — such as working nights — might merit a change. Proving the change of circumstances is a prerequisite to having the case heard. The court will still decide this question based on the best interests of the child.
WHAT IF I DO NOT LIKE THE PRESENT CUSTODY ORDER? CAN I FILE FOR CUSTODY IN ANOTHER STATE?
Bouncing cases across state lines in search of a “favorable” judge who “sees it your way” was very common for years, made a mess of custody actions, until the enactment of the Uniform Child Custody Jurisdiction Act (UCCJA for short). Adopted by all states, it avoids the competition and conflict for jurisdiction between courts of different states. Courts cannot take custody cases unless the child has lived in the state for a certain period of time immediately preceding the filing of the lawsuit. Furthermore, a court cannot reiterate the custody awards of another state, unless there is a genuine emergency and even then, the modifications would be limited to the emergency, not to wholesale changes in the original custody arrangement. The bottom line, most likely, is going back to the state where the last custody order was issued.
CAN CUSTODY RIGHTS BE MODIFIED?
Absolutely. You can go back to court to change a custody order if there is a substantial change of circumstance that has a significant, adverse effect on the child (such as visitation problems, erratic behavior, change in employment, residence, or marital status). Because we live in a highly mobile society, it is strongly recommended that you periodically evaluate the parenting plan. The courts recognize that many factors can be altered over a period following divorce and, though reluctant to change the parenting custody plan, the courts will do so if it is clearly necessary and in the best interest of the child.
Alternatively, the ex-spouses can voluntarily modify the last order by agreeing to changes between themselves. If there is a departure from the last custody order, it is best to put the new current changes in writing; oral agreements are difficult to enforce.
WHAT QUALIFIES AS A “MATERIAL CHANGE OF CIRCUMSTANCES”?
This could be the remarriage of one of the parties. Another is that the custodial parent wants to leave the state. One more is a change of health (such as a progressively chronic illness or disease) or economic circumstances (such as losing a job) that will effect the child. Finally, a change in the custodial parent’s lifestyle — such as working nights — might merit a change. Proving the change of circumstances is a prerequisite to having the case heard. The court will still decide this question based on the best interests of the child.
CAN VISITATION BE DENIED TO A NON-CUSTODIAL PARENT?
Yes, but this occurs only in extreme cases. When one parent has abused or neglected a child, placed the child in dangerous situations, threatened removal of the child from the state, or abuses alcohol or illicit drugs, this parent’s right of visitation can be denied and the other parent awarded sole legal custody and sole physical custody. Denial of visitation is not the norm and strong evidence must be presented in a court hearing to deny a parent from having any visitation rights.
In less extreme cases, visitation could be allowed but subject to certain restrictions. For example, a court order an alcoholic or drug addicted parent to refrain from use of alcohol or illicit drugs in the presence of the child and submit to regular alcohol and drug tests to show that s/her is “clean.” A parent who has been accused of neglecting a child in the past or threatening to take the child away from the other parent may have visitation restricted on the basis that it take place only when supervised by a qualified third-party (so called “supervised visitation”). Supervised visitation is preferred to denial of visitation on the basis that there is a strong public policy to promote continuing and frequent contact between the child and both parents -having the visit supervised is better than completely denying the non-custodial parent the ability to spend time with his/her child.
WHAT HAPPENS WHEN VISITATION RIGHTS ARE FRUSTRATED?
Frustration of visitation occurs when the custodial parent takes steps to prevent the non-custodial parent from having contact with the child. This could be an innocent isolated occurrence, such as taking a child to a doctor to receive medical attention at the time the non-custodial parent is to arrive at the residence to pick-up the child for a scheduled visit. On the other end of the spectrum, when one parent “disappears” with the child, this could be a kidnapping or abduction which would result in criminal prosecution.
Frustration of visitation could be the grounds for modification of or termination of custody rights.
IF CHILD SUPPORT IS NOT PAID, MUST VISITATION BE ALLOWED?
Yes. The issues of child visitation and child support are separate issues.
Failure to pay child support is typically insufficient grounds to stop the right of the non-custodial parent to visitation with his/her child. Visitation is typically ordered by a court in the best interest of the child to promote love and affection with both parents – custodial and non-custodial alike. Child visitation is vital to the non-custodial parent so that a meaningful relationship between child and parent can be maintained or established. On the other hand, child support is based upon the financial needs of the child and the ability of both parents to provide for the child’s financial needs. Thus it is typically treated as a separate issue, the failure of one not having a determinative effect upon the other.
The custodial parent must continue to allow visitation with the child despite failure of the non-custodial parent to pay child support. Although this may be very frustrating to some, if the custodial parent “frustrates” the right of the non-custodial parent to visit with the child, the non-custodial parent could ask the court to change custody of the child based upon this frustration of visitation even though s/he is delinquent in payment of child support.
WHAT IS A VISITATION EXCHANGE?
A visitation exchange takes place every time a child goes from the physical custody of one parent to the other. In cases where both parents are able to set aside their personal differences for the sake of the child, there is usually no problem with the visitation exchange – one parent simply goes to the residence of the other to pick up the child.
Visitation exchanges become problematic when the personal differences between the parents are not settled. In the extreme, a domestic violence case makes the visitation exchanged difficult to handle, especially when restraining orders are in effect (such as an order that both parents are to stay at least 100 yards away from one another and may not go to the residence of the other). In these difficult cases, visitation exchanges can be conducted in a public place – a restaurant where one parent can sit in the back and then send the child to the front, in a local police station, hospital or library – places where there are a lot of people around who would notice if an argument between the parents erupted. In extreme cases, one parent would leave the child with a visitation supervision monitor and the other parent would arrive 15 minutes later, the visitation would proceed under the supervision of the third-party monitor, and then the visiting parent would leave 15 minutes before the other parent returns to pick-up the child. Creative visitation exchanges are sometimes necessary to allow visitation while keeping separation between the parents to reduce the possibility for violence between them.
WHAT IF THE CUSTODIAL PARENT WANTS TO MOVE AWAY FROM THE NON-CUSTODIAL PARENT?
Where the relocation distance is small, there might not even be a material change in circumstance upon which a parent could move the court to modify an existing custody and visitation order. Since typically a material change of circumstance is required before a court will modify an existing custody or visitation order, a move across town ordinarily is an insufficient basis upon which the existing order would be changed. Although the relocation may make the visitation exchange more difficult, it may remain practical to comply with the existing order, so no change would be made.
Where the relocation distance is great, the case becomes more complex. The primary factor of best interest of the child continues to be considered along with facts such as (1) the existing custody and visitation arrangement, (2) the attachment and support of the non-custodial parent and other relatives, (3) the child’s ties to the community, school, church or synagogue, and friends, and (4) the child’s desires and wishes. Only a small minority of states require a custodial parent to get the written consent of the non-custodial parent or a court order based upon a finding of the court that it is in the best interest of the child to allow the move. In many states, a custodial parent can relocate if there is a valid reason for the relocation and the move does not result in harm to the child.
WHAT IF THE CUSTODIAL PARENT WANTS TO MOVE AWAY FROM THE NON-CUSTODIAL PARENT?
The ability of the child to have continuing and frequent contact with both parents, without a detrimental effect due to the relocation, is the primary consideration for a court in modifying an existing order to allow the relocation. The modified order of the court could provide additional time with the non-custodial parent during summer and other school recesses and the obligation of the custodial parent to pay the additional transportation expenses incurred in facilitating the visitation exchange.
Custodial parents who move away with the child without providing notice to the other parent may not only face a change in custody to the other parent but also criminal charges of kidnapping. Before any move is entertained, the non-custodial parent should be informed of the impending move and an effort made to reach a mutually acceptable parenting plan based upon the proposed location of both parents. A relocation by the custodial parent requires careful consideration of the non-custodial parent’s rights as early in the planning process as possible. Move-away cases can become very difficult to resolve and court involvement can be both costly and time consuming. Thus, leaving in the dead of the night without leaving a forwarding address could have very detrimental effects to the custodial parent.
DO GRANDPARENTS HAVE VISITATION RIGHTS?
The simple answer is “yes, but”. The “but” is due to the limitations under which grandparent visitation can be ordered by a court. Grandparents typically may join an action between the parents, or even start an independent action, for the purpose of obtaining a court order for visitation with grandchildren.
The problem is that the grandparent may have to prove to the court that harm will occur to the grandchild in the absence of visitation. Since it is typically viewed that parents have a fundamental right to the care, custody and management of their child, only a compelling interest would be sufficient to allow a state (via its courts) to interfere with the parent’s right to raise his/her child without such interference. This may be difficult to prove, since the grandparent has the obligation to prove that harm will result to the child’s health and welfare should the court not order the parents to allow visitation with the grandparent. This is a difficult burden of proof to sustain
CAN GRANDPARENTS BE AWARDED CUSTODY OF THEIR GRANDCHILD(REN)?
With respect to custody, while either parent is alive, there is typically a preference that custody of a child be with the parent. In the event of the death of one of the parents, the other surviving parent ordinarily has a preference in law for the custody of a child. When both parents are dead, ordinarily custody is preferred to go to a blood relative, providing a grandparent with a viable opportunity to show the court that it is better for the child to be in his/her custody as opposed to other blood relatives. Courts will consider the age, health, and financial ability of the grandparent(s) to support and care for a child.
- Child Custody Factors In California:
- Child’s preference (if child is old enough);
- Desire and ability of each parent to allow relationship with other parent, and
- Child’s health, safety and welfare. Family Code § 3020-3424.
CAN CUSTODY RIGHTS BE MODIFIED?
Absolutely. You can go back to court to change a custody order if there is a substantial change of circumstance that has a significant, adverse effect on the child (such as visitation problems, erratic behavior, change in employment, residence, or marital status). Because we live in a highly mobile society, it is strongly recommended that you periodically evaluate the parenting plan. The courts recognize that many factors can be altered over a period following divorce and, though reluctant to change the parenting custody plan, the courts will do so if it is clearly necessary and in the best interest of the child.
Alternatively, the ex-spouses can voluntarily modify the last order by agreeing to changes between themselves. If there is a departure from the last custody order, it is best to put the new current changes in writing; oral agreements are difficult to enforce.
What Can I Expect?
A Court may not change physical custody from one parent to the other unless the change is in the best interests of the child.
Furthermore, even if the change of custody is in the best interests of the child, the Court cannot order a change of custody unless:
- a) both parties agree to the change; OR
- b) the child has been integrated into the family of the non-custodial parent with the consent of the custodial parent; OR
- c) the child’s present environment with the custodial parent endangers the child’s physical or emotional health or impairs the child’s emotional development, and the benefits of a change of custody outweigh the harm.
Attorney Christina Trujillo
