Family Law

Custody & Visitation

"I want 'Full Custody' of the children" - What does "Custody" really mean?

The word "Custody" really describes two separate legal relationships a parent has with a child. The two aspects of custody of children are “Legal Custody” and “Physical Custody.” The court need not award one or both to the parents in the same manner. (Parents often have joint legal custody while one parent has sole physical custody, and the other enjoys routine visitation.)

Legal Custody

Legal custody reflects a parent’s right to be apprised of, and included in, fundamental decision making about the child’s health, education, and welfare. Joint legal custody (where both parents have equal say in such matters) is very common and has little relationship to the amount of time the child spends with each parent. Although joint legal custody is commonly awarded to parents, there is no legal presumption for joint legal custody over sole legal custody.

Physical Custody

Physical custody refers to the child’s residence with the parent(s), and the parent's caretaker responsibilities in the day-to-day decisions affecting the child. The terminology of physical custody is likely to have less legal impact than the actual child sharing arrangement. The court can award sole physical custody to one parent with visitation rights (or not) to the other parent.

Technically, physical custody is either sole or joint. However, even courts use terms such as “primary physical custody” or “primary caretaker” to describe parenting roles and time – even though such terms do not have legal effect. Further complicating matters is the fact that what the parents DO may be more compelling than what the custody order SAYS. The child-sharing schedule, and participation in caretaker responsibilities can have significant impact on parenting rights in the future, particularly if one parent has a legitimate reason to move out of the area, and wants the child to also move. Parties to a divorce must be very careful to consider the move away scenario in defining their parenting role.

Father's Rights - Does the Court Automatically Prefer Mom for Custody?

The short answer is "No!" The law requires courts to evaluates the issues of custody based on the "best interests of the child." The court cannot consider gender in the custody decision. If it is determined that it is in the best interests of the children to be with the father, then the court will make that award. Regardless of your gender, children generally benefit from two stable, loving parents (putting aside their differences and) working together to raise them.

Visitation Schedules - What is a "Parenting Plan?"

Visitation schedules, child-sharing schedules, and parenting plans, refer to the same thing. They reflect the specific dates and times the children will be with each parent. While many divorcing spouses do not feel a need to confine themselves to such a structure, a parenting plan is often still a good idea.

Developing a detailed parenting plan can be difficult, but can help to avoid conflict in the future. When parents are doing well at co-parenting, they can easily agree between themselves make one-time modifications or adjustments to the formal written plan. When there is a conflict, the written plan provides a base-line to prevent abuse or denial of child sharing.

At Raskin & Tee, we will help fashion a parenting plan, by agreement or litigation. Experience shows that more detail is better than less detail. The plan should include the general pattern (i.e. alternate weeks, first & third weekend with Wednesday nights from 6:00 p.m. to Thursday at 8:00 a.m., etc.) and also exceptions to the general pattern for secular holidays, religious holidays, school breaks, birthdays, etc. Pick-up and drop-off times, locations, and obligations should be specified. Again, parents can always be flexible in making exceptions to accommodate one another. Continuous changes, however, could weaken the enforceability of the parenting plan.

Mandatory Mediation - Do We Have to Mediate Our Divorce?

Court mediation is not available to resolve your entire divorce. But, the San Diego Superior Court requires parents to attend a mediation session on the issues of custody & visitation before it hears a contested request for a Custody & Visitation Order. Attorneys are not present at these meetings, only the parties (and occasionally third parties or the children) may speak with the mediator. Your attorney should prepare you for this important session. If the parties do not come to an agreement, and sign it at the mediation, then the Mediator will prepare a report, with a recommendation, for the court to review in advance of the contested hearing. The mediator's recommendation is not binding on the court, but it can be persuasive.

It is usually a good idea to engage an attorney well BEFORE the mediation session, not after it fails, when you receive an unfavorable recommendation and/or when the hearing is only a few days away.

Can Custody Or Visitation Be Modified?

Yes, and they often are. See our page on modifications.

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