Divorce is difficult on all parties involved and may be especially difficult on the divorcing parties' children. The duty and privilege of a being a parent is to put the best interest of the child(ren) first. Therefore, when making a custody determination for your children, it is important to take their age, interests (extracurricular activities), education, religion and current lifestyle into consideration. Depending on the age of your child, different custody arrangements may be appropriate. For example, if you have teenagers, shared/joint custody of alternating weeks with each parent may be beneficial. Alternatively, if you have younger children, separation from one parent from any length of time may be more difficult for them. It is important to develop a custody plan that is best for your child, even though this may not always be what is most convenient for you as parents. In recent years, the label of shared/joint physical custody has become more commonly used in describing a parenting arrangement; however, actual 50-50 sharing of the child is still NOT the norm or most common parenting plan the court adopts or that parents choose.
Joint or Shared Custody in California typically involves the following aspects or terminology:
Joint Legal Custody
Both parents share the authority and right to make decisions about the education, health and welfare of their children as long as such decisions do not conflict with the actual physical custody order. Joint legal custody does not mean the parents will share joint physical custody.
Shared Physical Custody
Both parents will have significant periods of physical custody. Joint physical custody assures the children will have frequent continuing contact with both parents. This does not usually reflect an equal time-sharing plan.
Joint Physical Custody
Both parents share the child's time in a manner (schedule) agreed upon or ordered by the court. This may, though not usually, include an equal 50-50 sharing of parenting time. Often, one parent has the children for more time than the other parent; the parent with more time is oftentimes designated as the "custodial" parent. The "non-custodial" parent has specific parenting time as agreed or ordered by the court.
Sole Physical Custody
One parent is designated as the parent with physical custody. In situations like this, the other parent often has more limited parenting time, sometimes even supervised time until further order of the court.
What Parents Need to Know When Entering a Custody Dispute
- Understand the various types of custody and have a plan as to what will work best for your children.
- Understand that custody issues can be resolved privately and informally with no court intervention in mediation, or the issue can be litigated in the court system. An attorney can help you decide which method would be best for your case.
- Understand the role of the custody mediator if the case goes through the court system. The following is the typical process in what's called a "recommending county": First, the mediator is to attempt to assist you and the other parent in reaching an agreement on all parenting issues, i.e., legal custody, physical custody and a parenting plan. They will meet with both parents at the same time unless you specify to meet separately or a restraining order is in effect. If any parenting issue cannot be agreed upon by you and the other parent, the mediator will then provide the court with recommendations that he or she believes is in the best interest of the child(ren) on those issues where disagreement occurred. At a court hearing, the parents decide whether to request that the court adopt the mediator's report as a court order, or whether to set the issue for trial.
- Have a plan written out as to what you believe the custody and parenting time should be and why it is a benefit to the children. This is where you include holidays and vacation time.
- Take a look at the school district the co-parent will be or is currently living in. If the children are excelling in their current school and the co-parent lives a distance away, look into ways to ensure the children will have transportation and daycare if required. The goal is to try to keep stability in the children's lives.
- Understand that different counties may have different rules regarding the court custody mediation process. In what's called a "recommending" county, the mediator makes recommendations to the judge including the contentions as well as agreements each parent has made. In some counties, the mediator only reports to the judge when an agreement is made. In such confidential or "non-recommending" counties, the custody mediator does not provide the court with any recommendations; rather, the mediator only provides the court with agreements reached between the parties.
- If there are issues regarding negligence, incapacity of one parent or concerns such as domestic violence, make the mediator aware immediately.
The judge and mediator are there to insure a proper parenting plan is put in place for the children. They will have an impartial and complete view based off the information received, in part, by you as one of the parents. Therefore, be complete, coherent and prepared (even for compromises). Irrespective of the type of parenting plan you are seeking for your child(ren), it is important that you speak to a family law attorney knowledgeable in this area to answer your questions and discuss your legal options.