Understanding Joint Custody Under California Law.

By Jon D. Alexander, Esq.

My name is Jon D. Alexander, Esq. and I am an Orange County, California Divorce Attorney. This article is the fourth in a series outlining the divorce process in California. Please be aware that this article is not intended as and should not be relied upon as legal advice or as the creation of an attorney-client relationship.

Under the California Family code the following are defined (found generally at fam. Code. 3000 et. Seq.): (1) Joint custody is equivalent to joint physical and joint legal custody both together; (2) Sole physical custody means the child resides and is supervised by one parent, and visited by the other; (3) Joint physical custody means each parent has significant times of physical custody. The important policy goal regarding joint physical custody is frequent and continued contact with both parents.

The authority to determine the rights of the children in Sole legal custody vs. joint legal custody is quite different. Where sole legal custody is awarded, one parent will decide the health, education and welfare rights ("HEW" rights) of the child. And where Joint legal custody is ordered both parents will decide the HEW rights.

Joint legal custody is explained in Family Code section 3083. In California, there is no preference between joint custody and sole custody. This decision is left to the judge's discretion. With Joint legal custody both parents can decide HEW rights but only to the extent that the decision does not violate a court order, or is inconsistent with the other parent's physical time with the child (unless permission has been authorized by the court).

The court will identify where the consent of both parents is mandatory. This will not change joint legal custody. This power is reserved to the court, but the default rule is that either parent can take an action without consulting with the other unless they violate a court order without permission from the court.

Joint legal custody is often ordered without joint physical custody. To understand and analyze how joint legal custody will work a pro/con chart can be drawn up to illustrate the situation. In the left column the category should be labeled "both must agree" and the right column should be labled "either may decide."

Be aware, however, that in joint legal custody, every decision (generally) is under the "either may decide" category. The parents can discuss which issues will, through a stipulation or court order, be placed in the "both must agree" category. Here are some examples of "both must agree": emancipation, discipline, dating, and other related issues.

Administering Joint Legal Custody and making it work boils down to one issue: whether the parents can get along well enough to reach mutually agreeable decisions. Joint legal custody isn't synonymous with "joint custody."

True joint custody is joint legal custody and joint physical custody. There can be joint legal custody without joint physical custody. This means the joint legal custodian has the same rights and powers to decide the HEW rights just as the "physical custodial" parent.

Family Code Section 3011 outlines the factors to determine which parent will be awarded legal custody rights. The phrase "best interests of the child" is the court's general rule when awarding joint legal custody. In California a court can order joint legal custody even if one party disagrees with it. In fact, the court has the power to award it even if both parties disagree

So, what does "best interests" mean in this custody context of section 3011? A few important factors have developed: (1) The Health and safety of the child. If there are risks to the child's health, safety and welfare under a contemplated custody order, the order won't be issued; (2) Any history of abuse by one parent or any other person seeking custody against the child or the other parent. Here the court may require considerable, independent supporting evidence. In fact, if abuse allegations are made, the court must make a ruling on the allegations if it orders joint legal custody. For example, if the court orders joint legal custody it must speak to the allegations and describe why and how it determined the submitted evidence of abuse was not convincing; (3) Amount of contact with each parent, "Frequent and continuing contact." This factor turns on the question "who is better able or most likely to share the child?" This is the most important and frequently used factor. Just like it sounds, courts will identify and determine which parent is more likely to comply with court orders and share custody in order to carry out the policy behind custody arrangements which is, of course, allowing children to spend time with both parents; (4) Substance Use and Abuse. Alcohol or other drug abuse by a parent will substantially prejudice their ability to obtain joint legal custody.

In my next article, I will explain how abuse figures into child custody proceedings and I will identify the primary family law code sections governing this subject. In the meantime, if you have any divorce or family law related questions please contact me at your convenience. You can reach me directly at my website linked below or you may email me Jon at oc-familylawyers.com.

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Child Custody Mediation: Is it for You?

By Dianna Nelsun

Divorced parents who disagree on custody issues may find themselves involved in a long and costly court battle. This may seem unavoidable because the parents can't get their agreement worked out. This doesn't have to happen though. These parents may benefit from child custody mediation.

Child custody mediation is when the parents sit down with a neutral third party and try to come to an agreement about their custody case. Custody mediation can provide help for parents involved in a bitter custody battle or for those who just want a smoother case. Here is some information about custody mediation so you can decide if it is right for you.

There are various places to seek custody mediation. There are many private mediators who you can contact to sit down with you and your child's other parent. Sometimes the court will offer mediation services that you can try. In fact, some courts mandate that parents go to mediation before appearing in court.

If you and your child's other parent go to mediation, you will meet with the mediator and go over your custody agreement. The mediator will help the parents decide what is in the child's best interest. This is beneficial because the parents can really focus on making decisions for their children and not get caught up in personal issues between them.

The mediator won't take sides so that either party feels attacked. The mediator should lead a calm, rational discussion where both parents can discuss what is best for the child. This can be helpful because the mediator will keep the parents on track to discuss the children so other issues don't come up.

In mediation, parents can create a custody agreement that is fair to everyone involved. The mediator will guide the parents to come up with a workable custody and visitation schedule and to work through other custody issues. This can take away some of the entrenched anger in a custody case and can allow the parents to move on to enjoying time with their children.

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Custody Information You Need to Know

By Dianna Nelsun

Many divorced parents have a high learning curve when it comes to child custody. This is because they have never had to deal with the topic and all of the information is new. It can be frustrating to try to figure out everything that goes on in custody cases.

One of the first things a parent has to learn in child custody are the terms and the vocabulary. There are many phrases used in custody that a parent has to know about and comprehend. To help those who are just starting out in custody, here are some of the frequently used words and phrases and their meanings.

1. Parenting plan. This is also called the child custody agreement. This is the agreement that the parents create to establish the plan of their custody arrangement. The agreement has the custody situation agreed on and the custody and visitation schedule which shows when the kids are with each parent. There will also be a holiday schedule and any other provisions the parents want to include. If the parents agree on the custody issues they submit their agreement to the court. If they don't agree, the court will hear both parents speak and then decide on the agreement.

2. Joint custody. This is also called shared parenting and co parenting. There is joint legal custody and joint physical custody. In this custody arrangement, parents share the responsibility of raising their children. In legal custody, both parents have a say in important decisions about the children. In physical custody, both parents have equal time with the kids. This is different from sole custody where one parent makes the decisions for the children and has custody of them.

3. Child custody forms and filing for child custody. You fill out papers concerning child custody and then you file them with the court--the same court where you file for divorce. You have to fill out papers to get the custody case started and so a judge will decide on your case.

4. Custody mediation. Mediation is a tool used by divorced parents so they can meet together and make a custody agreement that they both like. In mediation, the parents sit with a third party who can help them make important decisions about the children and keep the parents focused on the issues on hand.

5. Family court and your custody order. Family court is also commonly referred to as custody court. In family court you either show the agreement you and the child's other parent have made and the court adopts it into an order (a document that makes the agreement legal so parents have to abide by it) or the parents present their cases and the court creates an order.

Knowing the common terms and words in custody is a good start for a divorced parent. This is a foundation for figuring out everything that you have to get done. Once you know what everything means you can move on to creating your agreement and getting it through the courts.

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Creating Child Custody Schedules

By Dianna Nelsun

The task of creating a custody schedule can be overwhelming for divorced parents. It can be an arduous challenge to figure out how much time the child will spend with the parents and when that time will happen. It can turn into a massive project of day counting, rewriting, and figuring out details.

The child custody schedule is also one of the most important things in a custody agreement. This is the document that outlines the time the child has with each parent. It's important that the parents work through the challenges of creating the custody schedule so they will be happy with the end result.

Parents can choose between many custody schedules. Many parents decide to adopt a joint custody schedule. In this schedule, both parents get about the same time with the children.

Similar to the joint custody schedule is a fifty-fifty shared schedule. This is when each parent gets fifty percent of the time with the children. A common sample of a fifty-fifty split schedule is the parents alternating custody every other week.

Sometimes the parents want to have equal time but the child needs to live primarily at one residence during the week because of school. There are ways to accommodate this. One way is to give one parent custody during the weekdays of the school year. The other parent gets time on the weekends and then gets more time during summer, winter, and spring break. This can even out the time.

The custody schedule includes the basic rotation of custody. Some samples of this are one parent having primary custody with the other parent having custody every other weekend, one parent having primary custody and the other parent getting several overnights in the month, and one parent having primary custody with the other parent getting every weekend and other visits or overnights.

The schedule also includes the custody time for the holidays. The mother and father usually split the holidays between them. Then they alternate the years of the holiday. It's important for the mother and father to both have major and minor holidays.

You can get through the difficulties of creating a child custody schedule by taking it one step at a time. Once you and the child's other parent are satisfied with the schedule it will all be worth it. Then you can focus on enjoying the time you have with the children.

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Joint Child Custody Agreements

By Dianna Nelsun

What is joint child custody? How does it differ from other custody arrangements? Will it work for your situation?

These are just some of the questions parents have about joint custody. Many people have heard the term, but they are unfamiliar with the particulars. Here is some information about joint child custody so you can decide if it is right for your situation.

When people say joint custody they could be talking about joint legal custody or joint physical custody. In legal joint custody, the parents both have the legal authority to make decisions for their child. This includes decisions about where the child will go to school, what religion the child will participate in, the medical care the child gets, and other issues. Parents may choose to have joint legal custody without joint physical custody.

Physical joint custody means that the parents work together to provide physically for the children. This means that both parents spend time with the child and also have a home for the children to live in. The parents usually split the time with the children so each parent has fifty percent of the time with them.

Parents have to communicate with each other regularly in joint custody. There needs to be clear communication about picking up and dropping off the children--because there is a lot of switching back and forth. Parents also need to be very organized because it can be easy to get a joint custody schedule confused. Parents also have the duty to keep the other one informed about important events.

Joint custody could be the solution you are looking for if you want your kids to have time with both parents. This is a way for both the mother and father to be involved in raising their kids after a divorce. If you feel this could be in your child's best interest you should look into developing a joint child custody agreement.

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Parenting Plans: Steps for Making One

By Dianna Nelsun

A parenting plan is another term for custody agreement. This is the document that divorced parents create together to outline the conditions of custody and visitation. This is a vital document in any custody case.

If you are involved in a custody case, you need to make your parenting plan. You want to be thorough and include everything that needs to be there. To help you, here are three things to put in your parenting plan.

1. Your schedule of custody and visitation. You need to outline the type of custody you and the child's other parent have, and the basic schedule of custody. You should also create a holiday schedule and incorporate that into your custody calendar. You can also include vacation time for the parents to take the children and other special events.

2. Child support documents and information. You will need to provide certain financial information for child support. This differs from state to state, so find out what your state required. It is also extremely helpful to figure out the exact time-share or overnight percentage. This number is used to calculate child support, but it is difficult to figure out. Most states just guess at the number. You want to make sure that your child support amount is correct, so figure this out exactly.

3. Provisions about parenting. There are always little rules that the parents want each other to follow. Think about the rules you want and include the important ones in your plan. This could be something like being informed when the other parent takes the child out of the country. Or not allowing the other parent to smoke around the child.

If you work hard when making your parenting plan, you'll be happy with the results. The courts are impressed with well thought out plans that contain enough information. Once your parenting plan is finished you'll be able to focus on your parenting.

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Child Visitation and Your Custody Case

By Dianna Nelsun

In custody terms, child visitation refers to the amount of contact that the children have with the parents. It can be used specifically to mean the time the child visits with the non custodial parent, which is the parent that the child doesn't live with. It is also more generally to refer to the overall arrangement of custody and visitation that the parents have set up.

Parents have a lot of flexibility concerning child visitation. They can create any type of arrangement that works for them. The first thing to do when making a custody and visitation schedule is to decide the type of custody that you want for your situation. Parents can have joint custody, which means they will both spend about the same amount of time with the children. You can also have a sole custody agreement, where the children mainly live with one parent and visit the other one.

The type of custody you choose will determine how you set up your visitation. The next thing to do is to set up a little schedule--about a few weeks--where you outline the custody and visitation schedule. This few week schedule then becomes the basis for your custody calendar and you apply it over and over again through the year. This is called the repeating or rotating cycle.

There are a number of ways to set up your repeating cycle. For sole custody, you can set up where the children spent the week with the custodial parent and weekends with the other parent. Or, you can set it up so the children visit the non custodial parent once or twice a week and then every other weekend.

In a joint custody plan, the parents can alternate custody every week, every two weeks, or every month. If you choose a longer period, like the two weeks or month, of custody you can schedule in some visits to the other parent. You can also have the children spend time with one parent for half the week and the other parent for the other half.

Another part of child visitation is deciding where the child will spend holidays. Usually the parents divide the holidays between them--with both parents getting major and minor holidays. You can also include vacation time with each parent in your visitation schedule.

Child visitation is one of the biggest and most important issues in a custody case. Both parents have to put in the time to create a schedule that will work for their situation. Once the visitation is all figured out then things run a lot smoother.

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Win Child Custody: How to Prepare

By Dianna Nelsun

If you want to win child custody, you need to be prepared. This applies even if you are just meeting with your child's other parent or if you need to present a case in court. You need to be prepared so you can get the time you want with your child.

Showing up with the right documents is the best way to prepare. Professional documents containing all of the information about your custody situation will impress the child's other parent and also a judge. Here is an outline of the papers to prepare so you can win your case.

You need to create a custody and visitation schedule. Decide on the custody arrangement that you want and then figure out a repeating cycle that will implement the schedule. For example, suppose you want joint custody with equal time for both parent. You decide that the best way to implement that is to have the child live with one parent during the week and have several visits and the weekends with the other parent.

Figure out your repeating cycle and write it out. Then you can apply it to a calendar. It's useful to have both formats to show your former spouse or the court because it gives a nice visual of the situation and a quick explanation.

Along with the custody schedule, create a holiday schedule. The easiest way to do this is to write out a list of all of the holidays and then assign custody to them. Make sure you give equal amounts of big and small holidays. If you want, you can also put them on the calendar.

There should also be a document that contains the other visitation information. This would be things like vacation times, special events, or other variations from the schedule. Write it all out and then put it in the calendar--it's very impressive to have the information in two formats.

The last document to think about is a list of any provisions or stipulations you'd like the other parent to agree to about raising your child. Perhaps you'd like to have a clause that neither parent says negative things about the other one in the child's presence. You can make a list of whatever is important to you and whatever you'd like the court to order your child's other parent to do.

Taking the time to prepare will ensure that you win your custody case. It will help because the child's other parent or the court will accept your custody agreement and plan. And, you'll be able to get the time you want with your child.

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Child Custody Advice About Legal Counsel

By Dianna Nelsun

As a divorced parent you have a lot on your plate. You are in the middle of making crucial decisions about your custody situation plus you have everything else you normally have to deal with. You want to make sure that you are getting the legal information and advice you need to settle your custody case well.

The phrase legal advice often conjures up an image of an attorney presenting a case in court. Many divorced parents don't know if they need to hire legal help or not. They certainly don't want to jeopardize their case by not getting the legal advice they need. To help you decide, here are three ideas to think about when considering if you want to hire an attorney.

1. Do you really need a lawyer? Take a good look at your custody case to decide if you need an attorney. If you and the child's other parent have strong disagreements or if there are have substantial problems in the past then you do want a lawyer to represent you. If you and the child's other parent can make decisions about your child together you may not need to hire an attorney.

Take some time to discuss your case with a lawyer. You can usually schedule an initial appointment to talk for a low cost. If they seem to think it is a pretty simple case then you may be able to do it alone.

2. Find an attorney who is on your side. Do your homework before hiring a lawyer. Meet with the person and discuss how he/she would represent your case. Make sure they understand your wants and needs in the situation and that they don't just brush you aside. This is one of the most important things going on in your life and they should recognize that.

3. Can you do some work on your own to take down the cost of legal fees? You may want the help of a lawyer but there may be some things you can do to lower the cost. Perhaps you can invest some time into making a custody schedule instead of your lawyer. Or, maybe you can decide on some provisions for your agreement.

You need the top legal advice out there for your custody case. If you are thinking about hiring an attorney make sure you think through all the issues. Then you can have confidence in your decision.

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Child Custody and Visitation Papers

By Dianna Nelsun

Are your child custody papers giving you a headache because they're such a hassle? You're not along. Custody papers can be very stressful and overwhelming because they are so complicated. To make things worse, every state has different papers and forms because the laws are different. This can make it hard to find the information you need.

To ease some of the confusion, here is a list of the common custody papers that divorced parents fill out. Remember that every state is different so you may not find these exact forms with these titles. But, your state will probably have similar types of forms to these if they aren't the exact ones they do have.

To start your custody case, you fill out a paper called a summons or a petition. This paper then has to be served to the other parent. There is also a form about the proof of service of summons that the person who served the papers has to fill out and that you have to include when you file. The parent who is served the papers has to fill out a response and file it with the court.

If no response is filed, the other parent can fill out a request to enter default. This is a request for the court to rule positively about your terms and conditions because the other party didn't contest anything. In some states parents agree that the one parent will file this because they are in agreement over there custody case and they want it to run smoother.

You will need to fill out various forms about your custody and visitation schedule. There will be a form about your basic schedule and one for your holiday schedule. You may also need to fill out a paper about provisions for joint legal and physical custody.

Child support also has a group of papers that need to be filed. Both parents have to provide information about income and expenses and financial statements. If you're trying to get the child support changed then you need to fill out a separate paper. And, you may also need to fill out a paper about having child support withheld from a paycheck.

It's no wonder that most parents hire an attorney to help them sort through the papers. However, even if you don't have a lawyer, you can still get the papers filed correctly. There are many resources available. You should be able to find answers at the courthouse, at a group meeting, the library, or the internet.

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Win Your Child Custody Battle

By Dianna Nelsun

Most divorced parents want to avoid a custody battle if it is possible. These are the parents who are looking out for their child's best interest and try to come up with an agreement based on their child's needs. They try to discuss issues reasonably with the other parent.

Parents can find themselves in the middle of a child custody battle before they know it. Often, the child's other parent will take steps to support a selfish agenda of revenge. These steps can include talking negatively about the other parent or being completely unreasonable about custody time.

Divorced parents need to know what to do in a battle so they can protect their child. Hopefully they can prevent a negative situation from happening, but if they can't prevent it they can at least learn how to deal with it. Here are three ideas to help you win your custody battle.

1. Take action and don't wait for the other parent. Don't wait around while the other parent does things like hire a lawyer and file for child custody. Take initiative and act. Figure out if you're going to need an attorney, know the documents you need to file, keep track of custody and visitation time, etc.

You basically need to begin the whole case with the thought that it could turn into a battle. You want to be levelheaded, of course, but you need to take the steps to cover yourself if things get nasty. Don't assume that your former spouse will be reasonable.

Too many parents don't get a fair custody agreement because they expected the other parent to be reasonable and they were sorely mistaken. Don't let the other parent give you an unpleasant surprise about their sneakiness. Take action quickly.

2. Keep track of appropriate information. You are going to need a lot of documents to show your case in court. As soon as your divorce goes through you need to be keeping track of how much time each parent is spending with the child, all of your financial information regarding the children, and you'll need any statements about custody.

3. Endure to the end. It can be easy to get overwhelmed and depressed in a custody battle. Keep fighting though. Try different strategies for getting time with your kids. Maybe you need to get a different attorney at some point. Remember your kids and that it is worth all of the hassle to get to be with them.

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