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Child Custody and Visitation Happ Law Group P.C.’s Child Custody Lawyer is a Certified Family Law Specialist Experienced in All Aspects of Child Custody Proceedings Including Legal and Physical Custody, Visitation and Relocation (Move Aways)
Child custody and visitation can be the most emotional, contentious and stressful aspects of a divorce or other family law case. Our child custody attorney’s extensive experience in both low-conflict and high-conflict child custody and visitation cases allow Happ Law Group P.C. to provide our clients with realistic expectations, vigorous advocacy and peace of mind that their case will be properly presented to the Court to obtain the best result possible.
For more information on the child custody and visitation in the State of California, please click on the links below:
- Understanding the Custody Litigation Process
Once a petition is filed with the Court, a parent may request that the Court make temporary child custody and visitation orders.
Temporary (or “pendente lite”) child custody and visitation orders are requested by filing a Request for Order (RFO). Once a RFO is filed, the Court will provide the parents with a minimum of two dates: 1) Family Court Services (FCS) mediation; and 2) a hearing date.
In FCS mediation, the parents will meet with a mediator who will try to facilitate a child custody and visitation agreement. If the parents are able to reach an agreement, the mediator will draft a written agreement. If the parents are not able to reach an agreement, the mediator will draft written recommendations as to what he/she believes that the appropriate parenting plan should be.
After mediation, the parents will appear in Court on their hearing date. If the parents reached an agreement in FCS mediation, the Court will make the agreement a court order. If the parents did not reach an agreement, the Court will review the FCS mediator’s recommendations and ask each parent to specify which, if any, of the recommendations that they disagree with. After hearing argument from both parents, the Court will determine whether it will adopt as an order of the Court the FCS mediator’s recommendations in full, or to modify the recommendations.
These temporary orders will provide the parties with a parenting plan which, absent modification, will remain in place through the remainder of the divorce case.
The final step in any divorce case is a trial. While most divorce cases never make it to trial (most often because of the time and money involved in conducting a trial), some do. If a parent or both parents are dissatisfied with the temporary child custody and visitation orders, the parent(s) can request different orders at trial.
- Legal and Physical Custody
“Legal” custody pertains to the right to make decisions regarding the health, education and welfare of your child(ren). Sole legal custody means that only one parent makes decisions about the health, education and medical and welfare of the child. Joint legal custody means that both parents must be involved in such decisions.
“Physical” custody refers to the parent with whom the child resides. Sometimes parents will have “Joint Physical Custody” and the child will spend a significant amount of time with both parents. Primary physical custody is awarded to the parent with whom the child lives the majority of the time. Secondary physical custody with visitation rights is given to the other parent.
- Impact of Domestic Violence on Child Custody
According to Family Code §3044(a), “upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child.”
In determining whether the §3044(a) presumption has been overcome, the Court must consider the following factors:
- Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, may not be used to rebut the presumption, in whole or in part.
- Whether the perpetrator has successfully completed a batterer’s treatment program.
- Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate.
- Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate.
- Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole.
- Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.
- Whether the perpetrator of domestic violence has committed any further acts of domestic violence.
- Child’s Wishes
When a child wishes to participate, the court is expected to find a balance between protecting the child, the statutory duty to consider the wishes of and input from the child, and the probative value of the child’s input while ensuring all parties’ due process rights to challenge evidence relied upon by the court in making custody decisions.
If a child is at least 14 years old and wants to inform the Court of his/her wishes regarding a parenting plan, the Court must allow a forum for the child to express his/her preferences unless the Court makes a finding that addressing the court is not in the child’s best interest and states the reasons on the record.
If a child is less than 14 years old, it is within the Court’s sole discretion as to whether or not allowing the child to inform the Court of his/her wishes is appropriate.
If a child does inform the Court of his/her wishes, the Court is not required to follow the child’s stated preferences.
- Parental Relocation (“Move Aways”)
When a parent who has sole physical custody seeks to relocate, the parent who seeks to prevent the child’s relocation has the initial burden of showing that relocation would cause “detriment” to the child. If the non-moving parent is able to make a showing of “detriment,” the court must evaluate the issue of physical custody and determine whether a change in custody to the non-moving parent is in the best interest of the child.
When the parents share joint physical custody under an existing order and one parent seeks to relocate with the child, the non-moving parent who seeks to prevent the child’s relocation only has to show that the change of custody will be in the child’s best interest (a showing of “detriment” is not necessary).
If a parent seeks to relocate with the child to a foreign county, the moving parent must show that the other parent’s parenting rights can be preserved in light of the cultural, transportation, and financial problems posed by an international move.