Legal Custody

Legal Custody allows a parent the ability to make decisions regarding the health, education and welfare of a child. Joint legal custody is extremely common. However, occasionally sole legal custody is appropriate and ordered by the court.

Physical Custody

Physical custody of a child allows a parent the day to day responsibility and care for the child. Each case is evaluated individualy by the court based on the best interest of the children. Of course, physical custody relates to where the child primarily resides. In this day and age, joint physical custody is common as well as the more modern labels of "primary" and "secondary" physical custody. Of course, sole physical custody is also used and appropriate in some instances. Regardless of the label, California law states it is important for children to have frequent and continuing contact with both parents.

Visitation

Most court orders are written so that the physical custody of the child is subject to the other party's right to visitation. The court may order an age appropriate "standard visitation schedule" which can be found in our Relevant Links to the Orange County Mediation and Investigative Services. However, more and more often, the standard schedule is disregarded and the court determines an appropriate visitation schedule based on the best interest of the children.

Court Orders and Judgments

Upon filing a family law case, many parties also file an Order To Show Cause Regarding Custody of the minor children. The Order To Show Cause is a hearing which requests orders regarding custody and visitation of the minor children. The orders issued at an Order To Show Cause hearing will be temporary orders (or often referred to as pendente lite orders) which will be effective through the conclusion of the matter (the trial date) or further Order To Show Cause. At trial, the Court will make final orders which will become the Judgment.

Post - Judgment Modifications

Most Post-Judgment Modifications require a change of circumstance from the original Judgment. This requirement can be very confusing and is currently cutting edge law. Therefore, it is important to consult with a professional regarding the facts of your particular case prior to filing a Modification of Custody.

The Court Hearing

Prior to any Order To Show Cause Regarding Custody, a mediation appointment between the parties is required. Mediation is confidential and the negotiations in mediation are not allowed to be shared with the court. A trained mediator will listen to your needs and help the parties negotiate to create an appropriate schedule for your children. If the parties come to an agreement, the mediator will write it up and then your attorney can request that it become a court order.

In the event that the parties cannot reach an agreement, the parties will attend their hearing and present evidence to the court. The court will then determine what is in the child's best interest and rule accordingly.

The court determines legal and physical custody based on the best interest of the child. Most often, frequent and continuing contact with both parents is considered to be in a child's best interest.

730 Psychological Evaluation

In some circumstances, a court may determine that an Evidence Code 730 Psychological Evaluation is required. In this case, the parties and the minor child will meet with a psychologist or other mental health professional. That mental health professional will render a recommendation for custody and visitation for the minor child(ren).

Visitation And Orders Regarding Alcohol, Drugs, and Domestic Violence

The abuse of drugs and/or alcohol as wells as the perpetration of domestic violence are all factors the court considers when determining if monitored visitation is required to protect the minor children. In some cases, the court may be requested to make a finding that supervised visitation is in the child's best interest. In this case, either a third party or and off-duty law enforcement officer may be required to be present when the child visits with his or her parent. Further, the court can also order that a parent be free from the influence of drugs or alcohol during visitation, and can even impose drug testing to enforce compliance.

Custody matters are all complex and as different as our individual children. Please contact our office for a free consultation to allow us to advise you regarding the issues specific to your case.