Child Custody Overview

December 23, 2021
by Briana White

Child custody refers to the various rights and responsibilities associated with taking care of a child. These authorities and obligations are most commonly associated with divorce; however, they are also relevant to unmarried parents, grandparents, legal guardians, and individuals looking to adopt.

In this child custody overview, we’ll define important terms, talk about parental rights, and help you gain a better understanding of what to expect during this important process.

Child Custody: 101

In the family law arena, child custody refers to the myriad of rights, powers, and obligations associated with caring for a child. Most of the time, we think of these authorities when couples are getting divorce, however, child custody can also be relevant to:

Unmarried parents—couples who are not married, and want a structured parenting plan to govern interactions with their child.
Grandparents—who might be wanting to gain custody over a grandchild who isn’t receiving proper care from parents.
Legal guardians—who may need partial access to certain custodial powers in order to care for a child or incapacitated adult.
Adopted parents—who may want to take on the full mantel a of parental rights for a child who isn’t biologically theirs.

Regardless of circumstances, all child custody cases are governed by the same set of family laws. These laws attempt to make decisions based on what outcome is most likely to serve a child’s best interest.

In California, these custodial powers break down into two main groups: legal custody and physical custody.

Legal Custody

First off, there’s legal custody, which refers to a parent’s decision make authority, and their right to determine how their child will be raised.

This category of custody includes a parent’s right to make decisions about their child’s:

Medical and dental health;
Psychiatric and psychological therapy;
Education and child care;
Religious and cultural exposure;
Travel opportunities; and even,
What extracurricular activities they’re allowed to be involved in (if any).

Most of the time, California parents will end up sharing this authority, equally, meaning that both must pass off on all major decisions.

Physical Custody

The other branch of custody is physical custody. This category refers to a parent’s right to live under the same roof as their child, and to have regular, in-person face time.

Since it’s so difficult to divide a child’s time exactly equal between parents, California courts will almost always assign one parent to be the child’s custodial parent (or “primary residence” parent), while assigning the other ample parenting time in the form of visitation.

A child’s primary residence is where they live most of the time. This parent is in charge of meeting their daily needs, including food, clothing, as well as things like transportation, daily medication, and homework.

Child Custody: Joint vs. Sole

In California, legal and physical custody are assigned separately. To this end, each set of powers can be assigned to one parent, alone (in “sole custody”), or to both, as shared powers (known as “joint custody”).

Most of the time, legal powers are assigned jointly between parents. This means that both must pass off on decisions for their child, and that one cannot act without the express permission and authority of the other. Legal custody is easy to split fifty-fifty, since it doesn’t require a child to be living under the same roof as its parents.

Physical custody, on the other hand, is not as easy to divide equally. Between school, extracurricular activities, competing work schedules, and child care needs, it can be nearly impossible to give each parent an equal amount of face time with their child. Which is why it’s so common for courts to assign one parent to be the child’s primary residence.

To decide which parent will be the child’s primary residence, the court will analyze a number of individual factors, to determine what course of action will be in their best interest.

Primary Residence Factors

Some of the factors the court may consider when deciding on primary residence include:

The child’s relationship with both parents;
The child’s physical, emotional, and educational needs;
The child’s need for continued social stability;
The child’s tie to relatives living in the area;
Each parent’s ability to care for their child;
Any history of family violence; as well as,
Any history of substance abuse by either parent.

Keep in mind that in California, you can still be considered joint physical custodians, even if your arrangement has an uneven division of time.

Child Custody: Visitation

The parent who does not get assigned as the primary residence will still receive ample parenting time in the form of visitation.

A visitation schedule outlines the division of time with your child, and is determined based on what is in your child’s best interest. In California, visitation can be:

Scheduled—a detailed plan that outlines specific dates and times of exchange, including where the child will spend holidays and birthdays.
Reasonable—an open-ended agreement that does not make specific arrangements; instead, parents agree to work out the details between themselves.
Supervised—an arrangement that requires visits to be supervised by another adult, or a professional agency. This type of visitation generally occurs when the child has experienced harm or neglect because of the parent.
No Visitation—a situation where any contact with a parent (even supervised) would be physically or emotionally harmful to the child.

In addition to a visitation schedule, non-custodial parents are often assigned to pay child support.

Child Custody: Child Support

As all parents know, children don’t come cheap, and these expenses don’t end, just because parents get divorced, meaning that—without support—a child’s primary residence parent will inevitably end up shouldering the bulk of costs for these daily needs.

Hence, to offset this imbalanced financial burden, California courts will often require non-custodial parents to pay child support. This ensures both parents are responsible for meeting their child’s needs, and are held equally accountable, accordingly.

In California, child support is calculated using a formula that weighs each parent’s income against their percentage of parenting time. However, the court is allowed to deviate from this formula in situations like a high net divorce, when a higher monthly amount would be more appropriate.

Child Custody: Drafting your Parenting Plan

A family court judge is often needed to help finalize custody matters, however, they aren’t necessarily a requirement, and couples are always free to draft their own parenting plan.

This can be done between individuals—with or without attorneys—or through a more structured process, such as divorce mediation. For some couples, collaborative divorce can be another good, out of court option.

So long as your proposed custody agreement meets certain state guidelines (such as child support minimums), judges are usually happy to sign off on an agreement you reach on your own.

Child Custody: Enforcement and Modification

In California, decisions involving minors are all made under the scrutinizing lens of the best interest of the child. This legal standard requires the court to choose—not what you want, as a parent—but the outcome that will serve your child’s long-term health and wellbeing the best.

When a parent fails to uphold their duties under this order, it’s the child who ultimately suffers the most, and California courts do not take these infractions lightly. Penalties for noncompliance are dependent on the offense, but can result in serious legal consequences, including a restriction on parental rights, fines, and even jail time.

If there is a legitimate life change keeping you from carrying out your responsibilities, then talk to your attorney right away. In some situations, custody orders can be modified, however, these changes cannot be applied retroactively. So it’s important not to wait, if something comes up.

Child Custody Attorneys in California

As a parent, nothing is more important to you than your child. You want what’s best for them, and worry about how divorce will affect them. At Maples Family Law, we understand and empathize with these concerns, which is why we hope you’ll trust us to help.

If our child custody overview hasn’t answered all your questions, we hope you’ll reach out. Call us today at (209) 989-4425, or get in touch online, and let our team of experienced family law attorneys fight for your child’s best future.

Child Custody

Enforcing a Visitation Order

December 13, 2021December 13, 2021
by Briana White

In California, all custody decisions are made according to a child’s best interest. This includes being able to have a loving, healthy relationship with both of their parents, whenever possible. However, these relationships can’t blossom without quality time.

That’s why when parents don’t live together, the court will often issue a visitation order. These edicts ensure that the rights of both parents are being upheld, and that each has the chance to foster a meaningful relationship with their child.

California courts don’t make these orders lightly, and failure to uphold them can trigger serious legal consequences.

If your child’s other parent isn’t cooperating with your custody arrangements, here’s what you need to know about enforcing a visitation order in California, and how the Maples team can help protect your rights and your child’s best interests.

What is a Visitation Order?

Visitation orders dictate how a child’s time will be spent, including where the child will live, and how they will spend holidays. They are a key part of upholding parental rights—in particular, a parent’s right to have access to their child.

In terms of child custody, this access is often referred to as “physical custody.”

Both parents have the right to physical custody with their child. However, if they aren’t living under the same roof, this time must be shared. To this end, California courts will assign one parent to be the custodial parent (or, primary residence parent), while granting the other ample parenting time in the form of visitation.

Visitation orders are generally just one component of child custody. Along with visitation, your child custody orders will also address legal custody, and outline child support.

How to Enforce a Visitation Order When My Ex Has Primary Custody?

It’s hard being a non-custodial parent. You don’t get enough time with your child as it is, and when your ex stops complying with visitation, this puts you in a tough spot. Because now you have to decide if the stress of enforcing visitation is worth the strain on your already limited time together.

If this situation sounds familiar, start by asking yourself these four questions:

Is my order enforceable?
Does my order need to be updated?
Have we tried making things easier?
Is contempt really worth it?

Here’s a closer look.

1. Enforceability

Visitation orders are kind of like personalized laws made just for you. These edicts are backed by the full weight of the law, and breaking them warrants the same legal consequences as breaking any other law.

That being said, the police can’t enforce a law that’s too vague.

Before jumping through legal hoops, make sure that the terms of your visitation order are clear. In some cases, headaches can be cleared up by shoring up details like specific dates and times—something you may be able to coordinate together, without the court.

2. Updates

If your visitation order is sufficiently clear, then maybe the problem is that your order is dated.

As all parents know, a child’s needs change just about as fast as they grow. Hence, a visitation arrangement that worked well for your family five years ago might not be the best fit here, in the present. Indeed, some agencies won’t even help enforce orders that are too old.

If your order is no longer a good fit, then it might be time to consider a custody modification.

3. Alternatives

You don’t need to go back to court to resolve everything. Before drafting up a motion, try talking to your ex to see if there are tweaks you can make. Sometimes a simple change in drop-off location or an alternative pick up time is all it takes to keep things running smoothly.

If it helps, there are even exchange agencies, which can help supervise the transfer of children between parents. These professionals can be really helpful at both keeping parents honest, and tracking violations. And while they do charge a fee, it’s definitely cheaper than the cost of an attorney.

4. Contempt

If all else fails, the last step you should consider is contempt of court.

Contempt is a criminal action, which can be taken against someone who intentionally and willfully violates a court order. This is a serious charge, and one that comes with a very high burden of proof, meaning they’re tough to litigate—especially for visitation violations.

In terms of custody agreements, contempt is most often used as a means to enforce child support.

If you are thinking about pursuing contempt, it’s a good idea to consult your family law attorney, first. In many cases, the potential benefits aren’t worth the effort of pursuing in terms of visitation.

Visitation Order Modification

Judges don’t want to see you back right after delivering your original visitation order. However, under the right circumstances they are willing to consider a custody order modification.

Some of these circumstances might include:

A repeated, long standing pattern of custody order violations.
The child’s education needs have changed.
The custodial parent’s home environment has changed.
The child is being subjected to harm under the current order.
One parent is no longer fit to carry out parental responsibilities.
There has been a change of employment.
The custodial parent needs to relocate.

As always, California parents are free to draft their own parenting plan—and modifications. This can be done between the individual parents, or in a more structured environment, such as mediation.

Remember, however, that the changes will not be enforceable until they are approved by a judge—even if both of you agree. Until then, be sure to follow your original order, or else you could risk being held in contempt.

Enforcing a Visitation Order in California

Failure to comply with visitation isn’t just a violation of your parental rights. It’s also an affront to your child, who is being robbed of the opportunity to foster a loving, healthy relationship with their other parent.

That’s why if you have more questions about enforcing a visitation order in California, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us help ensure your child’s best interests are being met.

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