Whenever a divorce proceeding takes place and children are involved, issues of child custody and visitation inevitably arise. The goal for everyone involved should be to design a custody and visitation arrangement (also called a “parenting plan”) that effectively addresses the health, education and well-being of the children.
Typically, parenting plans are organized into two components:
Legal custody. This refers to which parent is responsible for making key decisions affecting the child’s daily life, most often those involving education, religious practice, medical needs and extracurricular activities. As with physical custody, legal custody can also be either sole or joint, though joint legal custody entitles each parent to participate in decisions about their children’s lives (even if they don’t agree on all of these decisions). In California, the presumption is that both parties can share legal custody, with exceptions where circumstances clearly dictate that one parent should have sole legal custody—as in situations involving domestic violence, abuse and abandonment.
Physical custody. This relates specifically to where a children lives and how best to organize their activities. With sole or primary custody, the child lives with one parent most of the time and visits the other parent. With joint custody, a child lives with both parents. In either case, certain questions need to be answered, including: Where should children live during the week and on weekends? Which parent is in charge of the children and at which times? How do children get from one parent to the other?
Physical custody also addresses the issue of each parent’s visitation rights. In my experience, visitation rights can be anything from “no rights” to having the children half (50%) of the time. Additionally, a parent can receive rights to supervised visitation, which generally involves the presence of a third party who monitors a parent’s time with his or her child; although the parties may agree to have a parent supervise the other parent, especially when it is in the child’s best interest, such as when a parent has previously had little to no contact with the child, to ease the previously-absent parent into the child’s life. Factors determining the need for supervised visitation may include, but are not limited to:
- The child’s relationship to the parent
- Any history of domestic abuse
- A parent’s detrimental conduct (due to alcohol or drug abuse, for example)
I believe that generally when it comes to determining these concerns, parents are uniquely positioned to make the best judgment call. In the vast majority of cases, parents have greater personal knowledge of what’s best for the children. By contrast, other participants in a court proceeding—such as lawyers, judges, other mediators—generally know much less about the children’s own personal past, present and future needs.
When parents are sincerely motivated to do what’s best for their children, the results are generally very favorable. Parents know their own strengths and limitations best. If they focus on the kids, they can (and should) be able to work things out between themselves.
If this isn’t possible, it’s time to consult a family law attorney and get assistance in creating a workable parenting plan for the future.
Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.