Law Offices of Robert BEttencourt

Custody, Visitation and Child Support:

1. What is the definition of legal custody?

Legal custody is the right to make decisions on parenting issues such as medical care, education and religious training. Legal custody may be joint or sole. If the parents have been awarded joint custody, decisions must be shared unless otherwise ordered by the Court.

2. What is the definition of physical custody?

Physical custody refers to where a child lives and who has responsibility for supervising the child.

When an award of joint physical custody is made, the child will live substantial amounts of time with each parent. California does not currently establish a preference or a presumption for or against joint custody arrangements.

When sole physical custody is awarded to one parent the other parent is usually awarded visitation rights, unless it would not be in the "best interests of the child." When the visiting parent could place the child's safety or well-being at risk, the judge may order supervised visits.

A judge may award sole physical custody to one parent, and joint legal custody to both. This means that the child will spend most of his or her time with one parent, and both parents will share in making important decisions about the child's life.

3. Does the mother always win sole physical and legal custody?

California law prohibits preference to a parent because of that parent's gender. Rather, if the parents cannot agree, the court decides based on which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent. Accordingly, there is no presumption in favor of granting custody to the mother.

4. What rights do nonbiological parents have to custody or visitation of children born of same-sex relationships?

In California, a child can have two parents of the same gender. A child born of a lawfully recognized union will be treated as the child of each member, regardless of the gender. Second-parent adoption is another way to guarantee that the parent-child relationship is recognized. Parents in these circumstances have the same rights to seek custody and visitation as their heterosexual counterparts.

Fortunately, status as a legal parent does not depend entirely on the marital or domestic-partner status of the parents. In 2005, the Supreme Court concluded that if a same-sex couple agrees to raise children together, but later end the relationship, both may be considered legal parents. This means that a nonbiological parent may request custody or visitation of his or her child without first having formalized the relationship.

5. What is the role of mediation in a custody/visitation dispute in California?

In mediation, a neutral third party helps the disputing parties settle their issues without lawyers present. The purpose of mediation is to 1) facilitate communication between the parties, 2) develop an agreement that will assure the child of close and continuing contact with both parents that is in the child's best interests, and 3) settle the parties' visitation rights.

Under California law custody and/or visitation issues between the parties must be set for mediation before they will be heard by the court. Mandatory mediation is also required whenever a grandparent or stepparent has applied for visitation. The court will usually have a custody/visitation mediator available to assist the parties in resolving their differences. The parties will not usually be charged if the mediation is conducted through the court. (Each county sets its own rules about mediation available through its Family Court Services).

Private mediation is also an effective way of resolving all of the issues in a case without the necessity of court intervention. Approximately ninety percent of privately mediated cases are settled and the cost of private mediation is about one-half of the cost of litigation.

6. What is the role of collaborative law in a custody/visitation dispute in California?

Collaborative law is a relatively new model of dispute resolution. Unlike mediation, each party retains an attorney whose sole role is to aid the parties in a negotiation and settling of the issues. In the beginning, both parties sign an agreement to provide information and documents. If either party decides to take the other to court, their collaborative law attorneys cannot represent them in court, and each party must retain a litigation attorney. The benefit of collaborative law resolution is that each party is assisted and advised by counsel at all times and is required to have legal counsel to participate.

7. My circumstances have changed since my divorce was final. My spouse has been interfering with my visitation of the children. What can I do about this?

The court usually retains jurisdiction over the child support, custody and visitation aspects of the divorce cases even after the divorce is final. Either spouse may modify the orders at a later date by bringing a motion before the court showing changed circumstances. The court may also have retained jurisdiction over spousal support issues.

8. How does the court decide what is in the best interests of the children when making custody decisions?

The primary considerations are the health, safety and welfare of the child. To determine which parent is most fit to ensure this, the court will hear evidence supplied by the parties and may refer the case for a custody evaluation. If referred, a psychologist, family therapist or child development specialist will interview all persons and professionals involved in the child's life and report his/her findings to the court. The evaluator may meet with parties together and/or separately to be able to evaluate their interaction and will assess the relationship of each parent to the child. The evaluator may order psychological assessment if it is believed necessary. The court will typically give great weight to the evaluator's findings. The court may order the evaluator's fees split by the parties or apportion the fees according to each party's ability to pay.

Resources and services are available to provide safe environments or havens for the child(ren) to visit with the other parent.

9. My 9-year-old child wants to live with me but currently lives with my spouse. Will the court consider his wishes in determining primary physical custody?

The court must "consider" and give "due weight" to the wishes of children who are old enough and have the maturity to form an intelligent preference as to custody. There is no specific age or criteria of maturity set forth by law. Usually the court will be more receptive to a child as she approaches her teen years but some courts will listen to a child as young as 7 or 8 years old and, depending on the facts, may refuse to consider the wishes of a 14-year-old child.

10. I can't afford both my car payment and my child support payment. What will the court's position be on this dilemma?

The court will probably order you to support your child first and make your car payment second. There may be certain circumstances in which your car is considered a necessity but these are uncommon. Consult your attorney.

11. What are the rights of a grandparent to visit her grandchildren? How may a grandparent gain custody of her grandchildren?

The court may grant reasonable visitation or custody to grandparents if it is determined to be in the best interests of the child. The grandparent seeking visitation must give notice to both parents and have their claim joined to the action. Your attorney will be able to provide you with information on how to accomplish this. Usually grandparent visitation cannot be ordered to the extent it conflicts with rights of custody or visitation of the birth parents.

12. My spouse filed for divorce. I was granted sole legal and physical custody of our child. I am interested in taking our child and moving out of the area. Can I do this?

In the past, the parent with physical custody of the child had the presumptive right to change the child's residence.

Now if the noncustodial parent can prove that the move would cause significant detriment to the child, the court must grant a full trial to decide whether custody should be given to the parent who remains. The court considers:

A. The children's interest in stability and continuity in the custodial arrangement

B. The distance of the move

C. The age of the children and the children's relationship with both parents

D. The relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests

E. The wishes of the children if they are mature enough for such an inquiry to be appropriate

F. The reasons for the proposed move, and the extent to which the parents currently are sharing custody."

13. Shortly after our divorce, my ex-wife married a wealthy man. Can his assets be considered in the calculation of child support?

The income of a new spouse is not considered in the child support formula except in extraordinary cases in which the exclusion of the income would lead to hardship for the child. However, the new spouse's income does have some effect on the taxable amount of the parties' gross monthly income.

14. My ex-spouse has remarried and now has another family to support. Can this affect the child support I am required to receive?

If the parent now has children from another relationship to support, the amount of your child's support may be decreased.