CHILD CUSTODY AND VISITATION
Parenting Plans & Visitation Schedules
In California, if parents can agree on how to share the custody of their children, that agreement is presumed by the courts to be in the children’s best interest. Accordingly, under most circumstances, the court will adopt an agreement between the parties as the formal order of the court.
However, if parents cannot agree on how to resolve child custody and visitation issues, then they are required to attend child custody recommending counseling, which was formerly referred to as mediation, to attempt and develop a parenting plan that will be in the children’s best interests. This process is a mandatory prerequisite to having a judge make a final determination concerning child custody and visitation.
A child custody recommending counselor or evaluator, formerly referred to a as mediator, will work to help parents reach an agreement. In non-confidential counties such as Placer, El Dorado, Nevada, Sierra, Alpine, and Sacramento counties, if an agreement cannot be reached, the custody counselor will make a recommendation to the court as to the parenting plan that is, in the counselor’s professional opinion, in the children’s best interests. In confidential counties, the counselor will provide to the court only a list of disputed issues and agreements made between the parents during the session but will not provide a recommendation to the court regarding an overall parenting plan. In non-confidential counties, custody recommendations are very influential to the court as the child custody recommending counselors are considered court experts. Even so, a recommendation remains only a recommendation and can be disputed in court. Regardless, adequate preparation prior to a child custody recommending counseling session is vital to achieving success when custody or visitation is in dispute.
Child custody recommending counseling may be conducted by Family Court Services (“FCS”) or, pursuant to court order or an agreement between the parties, may be conducted through a private licensed clinical social worker or licensed marriage and family therapist.
Call (530) 214-8700 today to schedule a consultation to learn more about your child custody and visitation rights and responsibilities and options moving forward, as well as the costs and benefits of utilizing a private child custody recommending counselor versus Family Court Services.
Legal Custody vs. Physical Custody
Physical custody refers to the visitation schedule and parenting plan that defines when the children will be physically present with a particular parent.
Legal custody refers to the right to make non-emergency decisions concerning the children’s health, education, and general welfare.
With respect to physical custody, parents can have joint physical custody, sole physical custody to one parent with visitation to the other, sole physical custody to one parent with supervised visitation to the other, or sole physical custody to one parent with no visitation to the other. Physical custody schedules are developed on a case-by-case basis with the goal of developing a plan that will be in the child’s best interests.
Similarly, legal custody can be joint, sole to one parent, or joint with final decision-making authority vested with one parent. In a joint legal custody scenario, the parents must confer and make joint decisions that concern their child’s health, education, and general welfare. In some cases, the court will vest final decision-making authority with one parent to avoid an impasse when an agreement cannot be reached. Still, the parents are required to meet and confer on the issue. When one parent is vested with sole legal custody, that parent need not even confer with the other parent before making decisions concerning the child’s health, education, and general welfare.
In California, there is a presumption that joint custody is in the best interest of a minor child. However, there are exceptions to that presumption. When a request for joint custody is denied, the court, upon the request of any party, must state in its decision the reasons for denying the request.
Call (530) 214-8700 today to schedule a consultation to learn more about your child custody and visitation rights and responsibilities and options moving forward.
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Some form of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) has been adopted by each state in the United States. The UCCJEA dictates which state has the ability to issue custody and visitation orders concerning a minor child. With but a few exceptions, only the “home state” of the child has the ability to issue custody and visitation orders concerning that child. Generally, the “home state” is defined as the state where the child has lived with a parent for at least six (6) consecutive months prior to the commencement of the proceeding. This may seem straightforward, however, there are many nuances to the UCCJEA, especially when previous court orders have been issued by another state, where the parties have recently moved to a new state, where a child less than six (6) months of age and was born in another state, or when there are safety concerns for a parent and/or the child.
Call (530) 214-8700 today to schedule a consultation to learn more about the nuances of the UCCJEA and how jurisdictional issues may affect your child custody and visitation rights and responsibilities and to learn about your options moving forward.
Move-Away / Relocation Cases
Most family law judicial officers will tell you that making a determination concerning a parent’s request to relocate with a minor child is one of the most difficult decisions they are required to make. These cases are especially difficult when the relocation is of a significant geographic distance which can often be the case in California where one parent is relocating to the East Coast or perhaps even internationally.
Absent an agreement between the parties concerning the move and a new custodial arrangement, move-away cases take time. Most litigated move-away cases take a minimum of six (6) months to a year to resolve. Additionally, in California judges are precluded from issuing orders that temporarily allow a parent to move with the children pending final resolution of the matter.
In some existing custodial arrangements one parent may have a presumptive right to move with the children. However, in others both parents will be given equal consideration when a move is proposed.
If you are considering a move, or believe the other party may be considering a move, it is important that you seek legal advice sooner than later. Call (530) 214-8700 today to schedule a consultation to learn more about the applicable law, timelines, and procedures relative to move-away cases.
International Relocation / Hague Convention Cases
As there are jurisdictional requirements within the United States that are defined by the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), there are also international jurisdictional requirements when parties’ have ties to more than one country. Many of these jurisdictional issues can be resolved through the application of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). However, The Hague Convention only applies to member nations. You can visit the link below for a current listing of member nations provided by the U.S. Department of State. For member nations, only the country of habitual residence of the child has the ability to issue child custody and visitation orders concerning the child. Additionally, The Hague mandates the return of any child who was a habitual resident of another contracting nation immediately before an action that constitutes a breach of custody or access rights.
When one parent requests to relocate internationally with a child who is a resident of the State of California to a contracting nation, then the request to relocate will most likely be litigated in the child’s “home state,” as that term is defined by the UCCEJA, which will likely be California. Additionally, if you have been living with your child in California for at least the last six (6) months and the other parent has left the country with your child, there is a good chance the court will order the child to be returned. However, when dealing with international custody issues, you need to be proactive if you’re planning a move and you need to act fast to preserve your parental rights if the other parent has left the country with your child.
If you are considering an international move, or the other parent or a third party has left the country with your child, it is important that you seek legal advice right away. Call (530) 214-8700 today to schedule a consultation to learn more about the applicable law, timelines, and procedures relative to international custody cases.
Applicability of the Hague Convention
- https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/abductions/hague-abduction-country-list.html