Category: <span>Child Custody</span>

How to Develop a Parenting Plan During Divorce

April 3, 2017March 12, 2020
by Angie

Your attorney will guide you through the basics of divorce, from filing a petition for dissolution in the Stockton court system to negotiating a property settlement with your spouse. Some things, though, are really personal—including how you set up your parenting plan so your kids get what they need from each of you.

As family law attorneys practicing in Stockton, we help parents from all walks of life through the difficulties of divorce. Many of our clients need help with child custody, which can be one of the toughest parts; both parents want what’s best for their kids, but they often don’t see eye-to-eye on what that is.

What is a Parenting Plan?

A parenting plan, which is also called a custody and visitation agreement, is a written agreement between two parents that describes time-share and decision-making.

What is Time-Share in a Parenting Plan?

Time-share is a specific schedule that outlines when the children will be with each parent. For example, one parent may pick up the kids from school every other Friday and return them to school on Monday morning; one parent might pick up the kids from school each day except Wednesdays, when the other parent does it.

What is Decision-Making in a Parenting Plan?

Decision-making is a specific outline that shows how each parent will make decisions about what’s best for their children, including health, education, and general welfare.

Is a Parenting Plan Legally Binding in California?

Once you and your spouse have developed a parenting plan and signed it, the judge will sign it (as long as it’s fair and serves the kids’ best interests rather than yours). It then becomes a court order.

How to Develop an Effective (and Good) Parenting Plan

It can be very difficult to work with your spouse, especially when you’re in the middle of a divorce. However, your children need you to advocate for them—and they need both parents to provide their love, support, and time.

Your parenting plan should deal with:

Physical custody, such as where your kids will spend each night, where they’ll be during the holidays, and which parent is in charge at which times
How the kids will travel between parents
Which parent gets the kids on school breaks, including the summer
Legal custody, including which decisions each parent can make alone and which decisions need to be made together
Schools and child care
Religion
Medical and dental care
Emergency care

Special Considerations When You’re Developing a Parenting Plan

When you’re outlining your parenting plan, make sure it meets their needs. Your lawyer will advise you to consider:

Your kids’ specific activities. Do they participate in sports leagues, piano lessons, or community activities?
Your kids need a regular schedule so they can depend on it; they’re going through a lot of changes right now, so consistency (where you can provide it) is very important.
Your kids’ needs. Every child is different, which is why it’s so important for you and your spouse to figure out what’s best for yours together.

Your parenting plan can also include stipulations that say each of you is entitled to:

Information about the kids
Access to the kids through phone calls, Skype or FaceTime
Access to the kids’ school and medical records
Access to each other’s phone numbers, addresses, and other contact information so you can communicate about the children

A good parenting plan is specific enough that you both understand your responsibilities and can both stick to it. However, you should also build in some flexibility; what if one of your kids is sick, for example, and doesn’t feel like traveling to your ex’s house for the day? What if a special school event comes up, or what if Grandma and Grandpa come to town (or you go to Grandma and Grandpa’s)? Building in room for special circumstances will make sticking to your parenting plan much easier, and when it’s easier for you, it’s easier on your children.

Do You Need to Talk to a Lawyer About Developing a Parenting Plan?

We’ve helped many people through divorce, and we can help you, too. As family law attorneys serving Stockton and the surrounding communities, we have extensive experience dealing with parenting plans and other divorce issues.

Call us at 209-910-9865 to let us know what you’re going through. We’ll begin developing a strategy that gets you and your children the best possible outcome—and we’ll give you all the support you need during this difficult time.

Child Custody

Child Custody Laws in California: What You Need to…

March 27, 2017May 24, 2020
by Angie

Child custody laws in Stockton (and elsewhere in California) are in place to protect the best interests of the children—but they can be a bit confusing. For this reason, many people choose to work with a Stockton family law attorney who understands how our custody laws will impact their families.

Child Custody Laws in California: Types of Custody

There are two types of child custody in California: Legal and physical. Each type of custody requires parents to fill different roles, but no matter who has either type of custody, the state requires both parents to contribute equally to their children’s well-being. Many parents share both types of custody, but there are cases in which one parent is awarded sole legal or sole physical custody of the children in divorce or when unmarried parents split up.

Legal Custody Laws in California

The term legal custody refers to the obligation of one or both parents to make important decisions for the children. Those decisions can include healthcare, education, and general welfare, as well as religious upbringing and a handful of other big issues.

If parents share legal custody, they both have the right to make decisions about their children’s lives. However, one parent can still make a decision alone.

Physical Custody Laws in California

The term physical custody refers to the obligation of one or both parents to provide a place for their children to live. A large majority of parents share physical custody—when this happens, it’s called joint physical custody—but that doesn’t mean that kids live with one parent half the time and with the other parent the other half of the time.

In some cases, one parent is awarded sole or primary custody. In these cases, the children live with one parent most of the time but still typically visit the other parent.

How Do California’s Child Custody Laws Determine Each Parent’s Rights?

California’s child custody laws require the courts to consider several factors when a judge is awarding custody. Naturally, both parents have the right to state their preferences in court and explain why they want legal or physical custody.

The court will consider:

The child’s age
The child’s health
The emotional ties that exist between each parent and the child
Whether the parents have the ability to care for the child
Whether there’s any history of violence or substance abuse among the parents
The child’s ties to his or her home, school, and community

Do California Courts Automatically Give Custody to the Mother?

It’s a common myth that the courts “automatically” award custody to the mother. Our child custody laws are very clear that the courts have to consider several factors, and, above all, put the child’s best interests first.

What if You and Your Spouse Agree on Child Custody?

Lots of couples agree on child custody and come up with their own visitation schedules. As long as the court sees that the agreement is fair to the children, and as long as you both understand what you’re committing to, parental agreements are usually fine.

It’s important to remember, though, that even if you and your spouse agree on a custody and visitation agreement, it’s not legally enforceable unless you’ve turned it in to the judge and he or she has turned it into a court order.

What if You and Your Spouse Don’t Agree on Child Custody?

If you and your spouse can’t agree on a child custody arrangement, the courts will decide for you. Your attorney will probably suggest that you try mediation or compromise so that you and your soon-to-be ex can reach an agreement on your own for three reasons:

It’s easier on your children (and you)
Fighting over custody in court can become expensive quickly
You may not like the final decision the judge makes

Do You Need to Talk to a Lawyer About Child Custody Laws in Stockton?

We understand that child custody is one of the most difficult parts of divorce, and we’re here to help you make the best decisions—not only for your kids, but for yourself.

Call us at 209-910-9865 today. Tell us about your situation so we can begin developing a strategy that gets you and your children the best possible outcome.

Child Custody

Temporary Custody: What You Need to Know

March 9, 2017June 8, 2020
by Anna Maples

During divorce, child custody can be one of the most contentious issues you’ll face. You, as parents, both want what’s best for you children—but if you’re like many parents, you disagree on exactly what that is.

California Child Custody Overview

In the state of California, the law requires that divorcing couples who share children propose a custody arrangement. The state recognizes two types of custody: physical and legal.

Physical Custody

The term physical custody refers to where the child stays overnight. If your child spends five nights per week with you and two with your spouse, you’re sharing physical custody. Physical custody is different from visitation or parenting time; those terms refer to the time your child spends with each parent.

Legal Custody

The term legal custody refers to which parent has the authority to make major decisions for the child. Those decisions can include choices related to healthcare, religion, and education, as well as other important issues.

What is Temporary Custody in California?

If you believe that your child is in immediate danger, you can ask the court to issue a temporary custody order. The danger can be physical or psychological; you can also ask the court for a temporary custody order if your child is in danger of being removed from the state. The court may also, at this time, issue a child support order.

Permanent Child Custody

You have the right to work with your spouse to create a parenting plan that outlines child custody (both legal and physical). If you both agree to it, the Stockton judge assigned to your case will most likely approve it—although there are some exceptions, such as when the parenting plan is clearly unfair to the children.

Judges are tasked with the important responsibility of putting the children’s needs first. Yours (and your spouse’s) are secondary to what the kids need.

If the judge approves of your parenting plan, he or she will sign it; then it becomes a permanent court order. Naturally, if your (or your spouse’s) circumstances change, you can ask the court to change the order.

Will Temporary Custody Affect Your Permanent Custody Arrangement?

Depending on the reason that you asked the court to issue a temporary custody order, it could affect your permanent custody arrangement. If one parent is incarcerated, for example, or if one parent puts the children in harm’s way, the judge may take that into account when ordering permanent custody.

Talk to a Child Custody Lawyer Now About Temporary and Permanent Custody

Child custody is often one of the most difficult aspects of a divorce, and for many people, that signals a need to work with an experienced Stockton child custody attorney.

We may be able to help you if you need to file for temporary custody of your children during divorce.
Call us at 209-910-9865 for a free case review. We’ll evaluate your situation and give you case-specific legal advice so you can begin moving forward.

Child Custody

How to get a Child Support Order

January 30, 2017May 24, 2020
by Anna Maples

How to get a Child Support Order

If you have a child with someone who is not your spouse or is a former spouse, getting child support can be a necessity in order to ensure the continued health, welfare and wellbeing of both yourself and your child. If you live in California that process can be accomplished by requesting an order for child support from the appropriate court. A court order can be requested either directly by going to the court or indirectly through a local child support agency. However, how the process is initiated will depend on whether or not you already have an open family law case.

Who Can Seek Child Support?

Anyone with a child can request child support from the other responsible party. For example, single mothers can request that the biological father pay support, same-sex couples, where both parents are the legal parent of the child, can request child support, and divorcing couples with children can request child support.

How Does the Court Decide Who Has to Pay Child Support?

If the parents are married at the time the child is conceived or born, then both are automatically presumed responsible and the court will usually require the non-custodial parent to pay child support to the custodial parent. However, if the parents are not married, then the parentage of the child must be established before a court can issue a child support order. (How to establish parentage is discussed below.)

PROCEDURE WHEN YOU HAVE AN OPEN FAMILY LAW CASE

It’s much easier to get a child support order when you already have an open family law case. The court recognizes several different types of family law cases, including:

Divorce cases (dissolution of marriage)
Legal Custody cases
Legal Separation
Annulment
Domestic Violence Restraining Order Proceedings
A petition of custody and support of minor children
Any local child support agency case

If you have any of the above cases already before the court, you simply need to fill out and file some forms:

1. A Request for Order (FL-300) – available online or through your local family court.

2. An Income and Expense Declaration (Form FL-150) OR a Financial Statement (simplified) (FL-155) – also available online.

**If you are unsure which financial form you need to use, form Which Financial Form – FL -155 of FL 150 (DV-570) is available to assist you.

After you’ve completed the forms, you should have either a family law facilitator or a private attorney review them to ensure that they are properly filled out and ready for the court to process.

After you’ve had your forms reviewed, file them with the appropriate court. Once you file the forms, the court clerk will give you a date and time for your child support order hearing. After you’ve been given a court date, you MUST serve the papers on the other parent.

Serving The Other Party

It’s important that the other party is properly served. Failing to properly serve the other parent can cause unnecessary delays in getting your child support order. To properly serve the other party, have someone over the age of eighteen either give the papers directly to them or mail the papers. You cannot give them the papers yourself and you cannot mail the papers yourself, a third party must do it.

The papers you serve on the other parent should include a copy of the papers you filed as well as a blank Responsive Declaration to Request for Order (Form FL-320) and a blank Income and Expense Declaration (Form FL-150).

If you don’t know anyone who can serve the papers, you can usually get a sheriff’s deputy to serve the papers. The court will be able to give you direction on how to have a sheriff serve the papers on your behalf. (There may be an extra charge for this).

After you’ve served the other parent, have the person who served the papers file a Proof of Personal Service (Form FL-330) with the court. If the papers were served by mail, have them file a Proof of Service by Mail (Form FL-335). It is imperative that the proof of service is filed. This is your legal proof that the other party was given adequate time to review and respond to your request for child support. Failing to file the proof of service allows the other party the opportunity to dispute that the papers were properly served, which could unnecessarily delay getting your order.

Now all you need to do is simply show up to your court date with your paperwork and present your case!

WHAT TO DO WHEN YOU DON’T CURRENTLY HAVE AN OPEN FAMILY LAW CASE

In this case, the steps you will need to follow will depend on whether or not you are married to your partner or in a registered domestic relationship.

Married or in a Registered Domestic Relationship

If you do not already have an open family law case, you need to first initiate a case, then follow all of the steps listed above for filling out, filing and serving the paper work.

However, not all cases are related to a breakdown in the relationship or the marriage. If you and your partner are either married or in registered domestic partnership and would still like to have the benefit of a child support order, you can start a case under a Petition for Custody and Support of Minor Children. A petition for custody allows the court to enter an order of child support as well as any other related orders.

Not Married or in a Registered Domestic Relationship

For people who are not married or in a registered domestic relationship, you can seek a child custody order by opening the following types of cases:

Domestic Violence Restraining Order

You can file a domestic violence restraining order if the other parent of your child has either emotionally or physically abused you. In this instance, you do not need to be in a romantic relationship with the person, so long as you share a child you can seek child support when you file the restraining order.

Petition for Custody and Support of Minor Children

If you already have a signed Declaration of Paternity you can file under a Petition for Custody and Support of Minor Children. If you do not have a signed Declaration of Paternity, then you will need to initiate a parentage case.

Parentage:

Parentage is perhaps the most complicated method of attaining a child support order. A parentage case is for unmarried people who share a child or children, but who do not have either a signed Declaration of Paternity or any legal documentation to establish who has legal responsibility over the child or children.

What is Parentage?

Parentage is the legal determination of who will be responsible for supporting the child. In order to be legally responsible for a child, a parent does not have to be the biological parent. Parentage can be established for adoptive parents, same-sex couples, or any person who has agreed to take legal responsibility for the child. Generally, if the child was not conceived or born during a marriage, then establishing the child’s parentage is necessary in order to seek custody, support, or visitation with the child. Once parentage is established, the legal parents are responsible for the child and failing to pay court ordered child support could have legal consequences.

Parentage is not the same as paternity. A biological father, who was never married to the mother, has no legal rights or responsibilities in relation to the child until his parentage is established.

How to Establish Parentage

Parentage can be established in several ways, including:

Signing a Declaration of Paternity:

Signing a Declaration of Paternity is voluntary and can be done either at the hospital when the baby is born or at a later date. Once a Declaration of Paternity is signed and filed with the California Department of Child Support Services, the signer becomes the legal father of the child. Once the declaration is signed a court order is no longer needed to establish parentage.

Providing Proof Of Giving Birth To The Child
Providing A Court Order Of Adoption
Asking A Local Child Support Agency To Bring An Action To Establish Parentage
Asking the Court to Issue a Court Order

Steps for filing a parentage case can be found here: http://www.courts.ca.gov/11298.htm

Establishing Biological Paternity

California law provides a presumption of paternity in certain cases. When there isn’t a presumption of paternity, then DNA testing can be done to establish paternity.

A. Presumptions of Paternity:

Paternity is presumed when:

A child was born during a marriage or within 300 days after the marriage ended,

A child was born during an attempted marriage that appeared to be legal, or the child was born within 300 days of the attempted marriage,

There was a subsequent marriage or attempted marriage after the child’s birth,

The child is welcomed into the home and is held out to be the natural child of the presumed parent.

Once you have successfully initiated one of the above proceedings, then simply follow the steps provided in the first section: Procedure When You Have an Open Family Law Case and you are on your way to getting your child support order!

However, if you still have questions or concerns about how to file your child support case or if your case is unique in some way, you should speak with a knowledgeable family law attorney or a family law facilitator.

Child Custody

Dividing the Child: Should Children be Involved in their…

May 5, 2016May 24, 2020
by Dr. Thomas Maples

Current California law requires the courts to give due weight to the wishes of a child who is 14 years of age or older regarding their custody and visitation arrangements if that child is shown to be of “sufficient age and capacity to form an intelligent preference as to custody or visitation.” However, AB 2098, currently under consideration by the state legislature, will move the age of decision making capacity from 14 to 10 years of age if it is passed.

This bill, commencing July 1, 2017, would instead require the court to permit a child who is 10 years of age or older, of his or her own volition, to address the court regarding custody or visitation, unless the court determines that doing so is not in the child’s best interests. The bill would require the court to determine whether the child is addressing the court of his or her own volition and to provide the child with an age-appropriate form developed by the Judicial Council that explains to the child specified information prior to the child addressing the court regarding custody or visitation. The bill, commencing January 1, 2017, would require the Judicial Council, no later than July 1, 2017, to develop this age-appropriate form (https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB2098)

On a practical level, this bill may sound promising at first. Why shouldn’t children have the capacity to choose the parent with whom they want to live? Why shouldn’t they be in control of the visitation arrangements they will be subjected to take part in as they learn to form independently operating relationships with either or both parents of their choosing? It is their life, is it not! Shouldn’t it be their choice?

Children are ultimately the ones who are subjected to the will of a third party, whose decision will ultimately affect the course of their academic, social, and familial future until the time they are 18. Unfortunately in today’s arena of highly contested divorces and custody conflicts, it is the children who are placed in the middle of the family conflict that is forever dividing the landscape they were born too. While it used to be common ground to tell children, “it is not your fault,” regarding the division of their family tree, now the state legislature and the judicial officers will be placing the capacity, no the responsibility to decide as to what parent they will lose: Oops, I mean which parent they will choose, even though both parents are ultimately at fault for their childish inability to take that same child’s best interest into account. A child simply must have the answer of what is in their best interest: Right. Or do they?

At first sight, this seems to be a progressive step towards children’s rights. From a purely philosophical perspective, it would seem to grant children the rights to exercise judgment under the guise of free will. However, from a practical perspective, can a child be expected to house this burden of choice, where an audience with the judge “will” come with a heavy price tag, one they may not be able to shoulder as the repercussions of their decision immediately takes form as a final order is rendered by the court. What emotional repercussion will take place for this child, and at what expense will their development be affected due the decision made to choose one parent over the other? Is a child 10 years of age even capable of making a decision of this magnitude? From a developmental perspective, the answer is clearly, NO!

From a developmental perspective, a child 10 years of age is in a socially awkward stage of life. This stage of development is commonly called latency. During latent development, a child has mastered core concepts of survival during infancy through early childhood, and can effectively care for themselves in a limited, but highly dependent manner. They remain dependent on their parents, even though either / or both parents may be unable or even unwilling to find the middle ground when it comes to the emotional, developmental, and spiritual needs of the child they fight so vehemently for within a custody dispute. This is especially difficult for a child of this age, who not only knows of the physical and emotional dependence they have on their parents, but concurrently lacks the cognitive capacity to formulate a multifaceted approaches to understanding the specific ramifications an either / or decision such as custody determination or visitation arrangements will have on their personal development. Children of this age, simply cannot think beyond the either or perspective enough to understand the consequences associated with their decision.

The idea of allowing a 10 year old a voice to choose custody preference or visitation arrangements becomes even more flawed when viewed from a psychosocial or a cognitive developmental lens. During their latent development, a period of childhood that begins roughly at 6 and lasts until 12 years of age, a child becomes more keenly aware of their personal strengths and weaknesses. This is especially true in areas of social, educational, and familial expectations. Values are passed on during this time, and these are linked not only to educational and social expectations, but specific values the nuclear family finds important to pass on to their offspring. During latent development, a child develops the capacity to see things from a “concrete operational perspective,” can reason about objects and simple relationships between them, but lacks the capacity to entertain multifaceted hypothetical scenarios common to abstract thought (Newman & Newman, 2003). While children may have the capacity to focus on relationships among adjoining or related ideas, they lack the capacity to see how draw inference as to how these ideas can related to other areas of life. In order to complete this form of complex thought process, a child must develop the capacity to abstractly reason, a developmental task that does not occur until mid adolescence.

Because children lack the capacity to form multifaceted, complex ideas around the ways either / or decisions can affect a variety of other factors that occur within their life, they are often seen to make rash decisions, which ultimately can be based upon the ulterior volition of one parent, where the will (whim) of the child can and ultimately will sabotage what is in their best psychological interest. From a cognitive perspective a child is unable to understand the brevity of the decision they are forced to make, regardless of a form they have been given to complete may imply.

Form a psychosocial perspective, a child during latency Must learn age appropriate social, familial, and occupational expectations. It is during this stage that a child needs his or her parents the most. Despite the division that occurs during the divorce process, the more perspectives a child receives regarding values and ethics formation, the better equipped they are to enter and model the complex thought capacities needed to form abstract ideals about the world in which they live.

A child during latency is said to enter a psychosocial crisis of industry versus inferiority. They learn social industry during this stage of development, which is inclusive of family values and / or expectations. If a child fails to engage appropriately in social industry development, the begin to lack the self esteem needed to push on towards further avenues of success. This oftentimes stands as the catalyst for future self-esteem problems that form the basis for numerous mental health disorders seen in early adolescence and early adult life.

Childhood is a special time where they must learn ways to appropriately interact with the environment that they not only live within but will eventually make their mark upon. Pushing children to grow up too quickly is never a good idea, expecting them to make decisions they are simply incapable of is a poor choice not only for the children, but also the courts who would implement this law, and the state legislature that is imposing a parameter on a population that cannot meet the expectation given. This is a bad idea. Not only from a psychological and developmental perspective, where the child who was once sheltered from the atrocities played out in family court will now be exposed and offered a voice as to what is the best of the two worst case scenarios.

If you’d like to get more information, or if you’re ready to speak to an attorney, please contact Maples Family Law.

Child Custody

Child Custody: Who’s Choice is it Anyways?

April 20, 2016August 13, 2020
by Dr. Thomas Maples

As the dust settles from the arguments that lead to your separation, and you have filed the volumes of financial data your attorney has requested of you, and have neared a mutual decision about the appropriate division of your assets and liabilities, there is one last question to settle. Who gets custody of the most precious asset your marriage produced?

In a perfect world, both you and your spouse will come to a mutual agreement of shared time, shared efforts in your child’s upbringing, and shared decision making capacity in regards to their educational, medical, and emotional wellbeing. You both created your child (Right), shouldn’t you both get to see the benefits (and yes the burdens) of seeing your child grow into a functional and productive adult. Unfortunately, in many cases this seems an alternate reality, a fantasy of sorts for those who undergo family law litigation.

Who’s Choice is it Anyways?

Before you start child custody litigation, it is imperative to know that you are seeking a third party decision regarding the time you may, or may not get to spend with your child. Ultimately a judge will issue a decision, one you may or may not be happy with. That is the consequence of not being able to settle your own disputes. While in a perfect world, your position will be taken 100% into account by the independently partial third party (the wishful thinking perspective), ultimately, the third party will need to make a decision regarding what parent should have legal and physical custody of your child. This removes the decision from your hands, placing it into the hands of a stranger that knows neither you, your opposing party, or the history either of you have in regards to functional child-care.

Remember, California Courts follow a specific rule when making decisions regarding custody. “Custody should be granted in the following order of preference according to the best interest of the child” (California Family Code Sec. 3040). When making rulings regarding what is in the best interest of your child, the court will take into account both parties perspectives, but will determine legal, and physical custody arrangements based upon factors such as the health, safety, and welfare of the child, history of spousal and / or child abuse, the nature and the amount of contacts between the child and the parents, drug and alcohol abuse, and any other factors that are relevant to your case.

If possible, it is best to work with your attorneys to find an amicable solution to your child’s custody schedule, work within mediation, and finally, when all other measures have failed, to pursue litigation to determine your custody arrangements. If you have joint physical or legal custody, both you and the other parent of your child can make decisions about what is in the best interest of your child’s physical and emotional wellbeing. However, in order to avoid further costly litigation, it is imperative to develop healthy communication with your ex as a means stay out of court.

Child custody Disputes are costly. Not only from a financial perspective, but ultimately from the perspective of damage it causes to the people caught in its wake. Ultimately, there are no winners in a child custody case, only individuals left to deal with a multitude of hurt emotions. Taking accountability now, and learning ways to effectively communicate with the other parent of your child may be difficult, but the rewards will be worth the work as it relates to both yours and your child’s emotional health and psychological wellbeing. Who knows, this decision may even help your family heal in a more timely fashion, as you learn effective ways to relate to one another that are inclusive, not divisive in nature.

If you feel stuck, the Maples Family Law is here to help.

Child Custody

Child Custody in California

January 5, 2016September 20, 2019
by Anna Maples

Hello, I’m Anna Maples, Attorney with the Family Advocacy Center. And today, I want to talk about child custody in California. Child custody is one of the issues that is resolved during the dissolution of marriage proceedings. However, child custody can also be resolved between the parents that are not legally married.

There are two types of child custody in California; legal and physical. Legal custody allows parents to make decisions regarding their children’s health, education, and welfare. Physical custody determines where the children will reside. Legal custody can be joint or solo. Joint legal custody means that both parents will make decisions regarding their children’s education, health, and welfare. Sole legal custody means that only one parent will be responsible for making those decisions.

Physical custody can be shared, primary, or solo. Shared physical custody means that the children will spend equal amount of time in both parents’ homes. Primary physical custody means that the children will reside with one parent and will have visits with the other parent. Sole physical custody means that the children will reside with one parent and will have limited or no visits with the other parent.

The court uses the Best Interest of the Child Rule when it determines legal, and physical custody arrangements. Factors used to determine the best interest of the child are health, safety, and welfare of the child, spousal and child abuse, the nature and the amount of contacts between the child and the parents, drug and alcohol abuse, and any other factors that are relevant to your case.

Remember, you can reach a mutual agreement with the other parent regarding child custody arrangements. If not, the court will decide the issue. At the Family Advocacy Center, we are here to help you either reach a mutual agreement or represent your legal interests in the Family Court.

Attorney Anna Y. Maples
Family Advocacy Center

Child Custody

Answers From a Child Custody Lawyer

January 4, 2016May 24, 2020
by Anna Maples

What happens with the kids after the divorce is started? Things can get complicated when you have children under age of 18 living with you when separating or filing for divorce. If you have minor children living with you, you and your spouse have to decide where the children will stay. The best way to do it is to talk to your spouse first, and see if you can reach an agreement regarding the children’s living arrangements. However, if you and your spouse cannot come to an agreement, you can ask the court to set custody and visitation arrangements for your children. This arrangement will become a court order, which means, you or other parent can enforce it in case the order is not followed by either parent. The court order will reflect the custody and visitation schedule as well as provisions prescribed by law or mediated by the court.

What is Legal Custody? Legal custody allows parents to make decisions or choices about their children’s school/child care; medical decisions; religious activities; sports and other extracurricular activities; travel; or residence. Parents who share legal custody both have the right to make decisions about these aspects of their children’s lives, but they do not have to agree on every decision made on their child’s behalf. Either parent can make a decision alone.

What is Physical Custody? Physical custody can be joint when the children live with both parents or sole when the children live with one parent most of the time and visit the other parent. Joint physical custody does not mean that the children must spend exactly half the time with each parent. Usually the children spend a little more time with one parent than the other because it is too hard to split the time exactly in half. When one parent has the children more than half of the time, then that parent is sometimes called the “primary custodial parent.” Sometimes, a judge gives parents joint legal custody, but not joint physical custody. This means that both parents share the responsibility for making important decisions in the children’s lives, but the children live with one parent most of the time. The parent who does not have physical custody usually has visitation with the children.

Do I have a right to spend Holidays with my children? Yes, you do have a right to spend holidays with your children, but remember that other parent has this right as well. You can make an agreement about the holidays that you would like to spend time, however, absent an agreement, the holidays will be divided equally between the parents, and parents will alternate each year with the children. However, the court may take into consideration some special holidays such as cultural, religious holidays, etc. and give that specific time to asking parent. However, this should not be intended to interrupt other parent visitation time with the children.

Can I take my children on vacation to a different state or country? You need the other parent’s permission to travel out of state with your children, especially if you want to leave the country or if, because of your traveling with your children, the other parent will miss his or her court-ordered visitation. If you cannot find the other parent, you will need to go to court and ask the judge for permission to let you leave without the other parent’s permission. You will have to look for the other parent and tell the judge everything you tried to find him or her.

I found a job in a different state and what to move there. Can I take my children with me? If you have a permanent order for sole physical custody (also called “primary physical custody”), you can move away with the children, unless the other parent can show that the move would harm the children. However, if you and your spouse have joint physical custody of the children and one parent does not want the children to move, you must show the court that the move is in the best interest of the children.

Can I change my current court order? Yes, but you have to show that there has been a “change in circumstances” since the final custody order was made. This means that there has been a significant change that requires a new custody and visitation arrangement for the best interest of the children. Parents may need to renegotiate portions of their court order every 2 to 3 years. If the parents agree on the changes, they can change their court order by using an agreement. But if the parents cannot agree on the changes, one of the parents must file papers with the court asking for a change (a “modification”) of your current child custody and visitation order.

The other parent and I agreed to a visitation arrangement that differs from the current court order. Do we have to come to court to change it? A written agreement signed by you and the other parent is a binding, enforceable agreement. However, a court cannot enforce such an agreement until it has become an order of the court called a “judgment.” A court may create a judgment by merging and incorporating the provisions of the agreement into the judgment. The judgment then replaces the agreement and can be enforced by the court if either parent violates it.

When you’re ready to get in touch with an attorney at Maples Family Law, please contact us.