Child Custody and Visitation

What is “custody and visitation”?
When you separate or divorce, you need to decide who will have “custody” of your children and how they will be taken care of.  You also need to decide on visitation, which means how each parent will spend time with the children. 
There are two kinds of “custody” orders:

  • Legal custody, which means to who makes important decisions for your children (health care, education, and welfare), and 
  • Physical custody, which means who your children live with.

Visitation” (also called “time-share”) is:

  • the plan for how the parents will share time with the children.

In California, either parent can have custody, or the parents can share custody. The judge makes the final decision about custody and visitation but usually will approve the arrangement both parents agree on.
If the parents can’t agree, the judge will make a decision at a court hearing. The judge will usually not make a decision about custody/visitation until after the parents have met with a mediator from Family Court Services. 

What are the types of custody orders?

Legal custody can be:

  • Joint, where both parents share the right and responsibility to make important decisions about the health, education and welfare of the children.
  • Sole, where only one parent has the responsibility to make the important decisions about the health, education and welfare of the children.

Some examples of the decisions or choices parents with legal custody make are:

  • school or childcare
  • religious activities or institutions
  • psychiatric, psychological, or other mental health counseling or therapy needs
  • doctor, dentist, orthodontist, or other health professional (except in emergency situations)
  • sports, summer camp, vacation, or extracurricular activities
  • travel
  • where to live

Physical custody can be:

  • Joint, which means that the children live with both parents. 
  • Sole or primary, which means the children live with one parent most of the time and usually visit the other parent. 

Sometimes, a judge gives parents joint legal custody, but not joint physical custody. This means both parents have share the responsibility in making important decisions in the children’s lives. But, the children live with one parent most of the time. The parent who does not have physical custody usually has visitation with the children.

What are the types of visitation orders?

  • Visitation:  When the parent who does not have the children more than half of the time has visitation with the children.  Generally, it helps the parents and children to have detailed visitation plans to prevent conflicts and confusion. 
  • Supervised Visitation: When the children’s safety and well-being require that visits with the other parent be supervised by you, another adult, or a professional agency.   Supervised visitation is sometimes also used in cases where a child and a parent need time to become more familiar with each other, like if a parent hasn’t seen the child in a long time and they need to slowly get to know each other again.
  • No Visitation: This option is used in situations when visiting with the parent, even with supervision, would be physically or emotionally harmful to the children. In these cases, it is not in the best interest of the child for the parent to have contact with the child.

What are a “time-share plan” and a “parenting plan”?

A time-share plan is another term used for visitation plan.

A parenting plan can be a visitation plan, but usually also includes a custody plan that explains who has legal and physical custody.

What does the law consider when deciding custody and visitation?

The law says that judges must give custody according to what is in the best interest of the child. Judges look at the children’s health, safety and wellbeing to decide whether to give custody to one or both parents. Courts also consider any history of abuse by one or both of the parents. 

Courts do not automatically give custody to the mother or the father, no matter what the age or sex of your children. Courts cannot deny your right to custody or visitation just because you were never married to the other parent, or because you or the other parent has a physical disability, or a different lifestyle, religious belief or sexual orientation.

In a few cases, if giving custody to either parent would harm the children, courts give custody to someone other than the parents because it is in the best interest of the children. Usually, this is called “guardianship,” where someone who is not the parent asks for custody of the children because the parents cannot care for the children.  Click here for more information on guardianship.

For more information, call the Law Offices of David W. Knecht to schedule an appointment to discuss your situation.