Custody and Visitation

Types of Custody

A lot of parents have heard terms like "joint custody" or "50-50 custody." In California, the Court is going to make orders on the two types of custody (legal and physical) and also on the schedule of when the children are with each parent.

Legal Custody

"Legal custody" refers to the ability to make important decisions about your children's health, education, and welfare. What school should they attend? What medical care should they receive? Should participating in extracurricular activities be tied to their grades? You can have joint legal custody, where the parents make those decisions together, or sole legal custody, where only one parent has a say.

Physical Custody

"Physical custody" has to do with where the children live or sleep most of the time. It's a general concept, and doesn't refer to a specific schedule. Again, the order will be either joint physical or sole physical. Even if one parent has sole physical custody, the other parent may have the right of visitation. Joint physical custody is the norm, but the Court may order sole physical custody if the parents live far away from each other, or if the children are with one parent almost all the time.

Visitation or 'Parenting Plan'

So if legal and physical custody are either "joint" or "sole," why do we hear people talking about "50-50 custody"?

"Fifty-fifty" (or "70-30" or "60-40" or any other percentage breakdown) refers to the visitation schedule or parenting plan. When people say they want "fifty-fifty" custody, they are saying that the child should spend the exact same number of hours a week with each parent. The only place where this is really important is in the calculation of child support.

Don't get stuck in the mindset that "50-50" is what you want or need or deserve. There's no "right" to an equal time share -- it all depends on what is best for your child. Work with your lawyer to discuss schedules, day care, extracurricular activities, carpooling, and the many other factors that will go into coming up with the best possible parenting plan.
Getting/Changing Orders

The process for getting or modifying custody or visitation orders is more complicated and time-consuming than asking for other types of orders. This is because when children are involved, the Court takes extra measures to be sure the children's best interests are being met.

When you file papers asking the Court to make orders about child custody and/or visitation, you’ll be given two dates: one for a mediation appointment with Family Court Services, and one for a court hearing.

Mediation Services

By law, parents who want to establish or change custody or visitation orders have to go through mediation first. This happens at Family Court Services, a state agency where trained social workers and/or lawyers meet with parents to try to get them to reach an agreement. Family Court Services won’t get into financial matters (such as child support, travel costs, health care reimbursements); the goal is to get the parents to agree on a parenting plan that is in their children’s best interests.

The mediator can spend up to two hours with both parents. If they can reach an agreement, or a partial agreement, Family Court Services will write it up and forward it to the judge before your court hearing. If there’s no agreement at all, or if there are some issues where the parents can’t see eye to eye, the mediator can then contact teachers, therapists, or the children themselves. He or she then writes a recommendation and forwards it to the judge.

Family Law Court Hearing

At the hearing that follows mediation, the judge reviews the results of the Family Court Services appointment and asks the parents if they have come to an agreement. (The parties must make a good-faith effort to meet and confer with the other side to come to an agreement before the judge will hear them.) If there is not a full agreement, the judge will hear about 15-20 minutes of oral argument from the lawyers (or, if there are no lawyers, from the parties).

At the end of the hearing, the judge adopts some version of the agreement or recommendation that he or she feels is in the best interest of the children.

Requests for Emergency Orders: What to Do When Time Is of the Essence

In the process described above, it can take three to four months before you get a court order on your custody or visitation matter. What if you can't wait that long?!

There is a process by which parties can request emergency orders. It's certainly not the norm, and the Court has very specific rules that must be followed about what constitutes an "emergency," when and how (and whether) the opposing party has been notified of the request, and whether the requested order is going to keep or change the "status quo." However, if the facts of your case support a request for emergency orders, the process moves much faster and you can have some sort of temporary order in place in under a week.

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