This is the time that you spend with your children. If you and the other party cannot agree on the timeshare schedule for the children, then the court will make the decision based upon the best interests of the children. The timeshare schedule may differ based upon the age of the children and their needs.
Issues involving children can arrise as part of a divorce or a parentage action when the parents are not married. It is important to craft a custody and visitation agreement that can stand the test of time. However, it’s important to remember you can never predict what the future holds, changes to these orders are common. Whether you need to establish an initial custody and visitation order or modify an existing order, these issues are very personal and stressful.
In California, there are two kinds of custody: legal and physical. Legal custody refers to who has the responsibility to make decisions relating to the children and physical custody is about who the children live with.
(a) Legal Custody. The parent with legal custody makes the decisions relating to the health, education and welfare of their child. Parents can share joint legal custody or one parent can have sole legal custody. (Family Code sections 3003 and 3006)
(b) Physical Custody. Joint physical custody means that each parent cares for the child for significant periods of times. Sole physical custody means that the child lives with one parent and visits with the other parent. (Family Code sections 3004 and 3007)
(c) Visitation. This is the actual schedule which dictates where the children spend specific amounts of time with each parent. This schedule dictates timeshare percentage, which is used for the purpose of calculating support. It is important to establish a set schedule that everyone can rely on. Without a set schedule, neither parent will be able to enforce the schedule.
Important Considerations in Child Custody Cases
- The child comes first. The courts evaluate every case using a “best interest of the child” analysis. The court will always do what it feels is best for the child. Sorry parents, it’s not about you, it’s about the kids.
- Regardless of timeshare, both parents have a legal obligation to support their children.
- Physical and sexual abuse of a child will prevent the abuser for getting custody of the child.
- While a child’s wishes may be considered by the court in certain circumstances, the child does not get the last word in the custody decision. Remember, the child has a voice, but not a choice.
- It is unlikely the court will separate sibilings, as it is unlikely to be found in their best interest.
Common Custody and Visitation Issues
- Initial orders: These should be as specific as possible to avoid confusion. Think about the school schedule, the summer schedule, and a holiday schedule.
- Modification: Change happens. It is dificult to craft a schedule that works for everyone for your child’s enitre minority. Sometimes both parents will acknowledge the schedule needs modifying, while other times one parent may be hesitant to make a change. Either way, the ultimate goal is to put a schedule in place that is in the childrens’ best interest.
- Move-aways: The reality is that when one parent wants to move away from the other, it can have a dramatic impact on the children’s time with each parent. These cases require special analysis and argument, every case is different.
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