Child Custody and Visitation
Understanding these different terms is important when
navigating your court proceedings. Below are the definitions of each and
how they are typically handled in court.
There are two types of custody, which are different than visitation.
Legal Custody
Legal custody refers to who has the decision-making power
over the child(ren). What school is chosen, what pediatrician, glasses or
contacts, etc. The parties can have joint legal custody, or the court can award
one parent sole legal custody. Typically, courts want to see both parents
involved in the decision-making for children, but exceptions, like a history of
domestic violence, substance abuse, or other behaviors that render one of the
parents incapable of engaging in such are common.
Physical Custody
Physical Custody refers to with whom the child resides. Like
legal custody, parents can share joint physical custody, or the court can order
that only one parent maintains sole physical custody. Typically, parties who
share an even or close-to-even timeshare of the child(ren) will share in joint
physical custody. When one parent has the majority of the timeshare, courts
typically grant that parent sole physical custody. Physical custody does not
have a whole lot of power like legal custody does, but can be useful in
choosing a school, as the child’s residence will determine what school district
is applicable. Physical custody also is important if one parent wants to move
further away from the other. If the parent with sole physical custody wants to
move, the court will usually side more with a parent who has sole physical
custody when deciding whether the move-away is appropriate or not.
Visitation
Visitation refers to the timeshare of the child(ren) and
parents, or how often the child will visit each parent. There are a number of
common visitation scenarios:
2-2-3 visitation: The child visits parent 1 for two days,
then switches to visit parent 2 for 2 days, then goes back to visit parent 1
for 3 days. This ends up creating an alternating weekend scenario. This
visitation schedule is best for children under ten, as children of that age
should not go too long without visiting the other parent. This visitation
schedule looks like this:
2-2-3 visitation schedule
Monday |
Tuesday |
Wednesday |
Thusday |
Friday |
Saturday |
Sunday |
Parent 1 |
Parent 1 |
Parent 2 |
Parent 2 |
Parent 1 |
Parent 1 |
Parent 1 |
Parent 2 |
Parent 2 |
Parent 1 |
Parent 1 |
Parent 2 |
Parent 2 |
Parent 2 |
Parent 1 |
Parent 1 |
Parent 2 |
Parent 2 |
Parent 1 |
Parent 1 |
Parent 1 |
Parent 2 |
Parent 2 |
Parent 1 |
Parent 1 |
Parent 2 |
Parent 2 |
Parent 2 |
2-2-5 visitation: with a 2-2-5 visitation schedule, the
child visits with parent 1 for 2 days, parent 2 for 2 days, then parent 1 for 5
days. This visitation schedule is best for children over ten, as they do okay
not having visitation with the other parent for several days at a time. This
visitation schedule allows each parent to have full weekends, but also
sometimes split their weekends with the other parent. This visitation schedule
can sometimes make planning ahead hard, as the parents have to sit down with a
calendar and mark out their visitation timeshare. It looks like this:
2-2-5 Visitation Schedule
Monday | Tuesday | Wednesday | Thursday | Friday | Saturday | Sunday |
Parent 1 | Parent 1 | Parent 2 | Parent 2 | Parent 1 | Parent 1 | Parent 1 |
Parent 1 | Parent 1 | Parent 2 | Parent 2 | Parent 1 | Parent 1 | Parent 2 |
Parent 2 | Parent 2 | Parent 2 | Parent 2 | Parent 1 | Parent 1 | Parent 2 |
Parent 2 | Parent 1 | Parent 1 | Parent 1 | Parent 1 | Parent 1 | Parent 2 |
Week on/Week off visitation: A week on/week off visitation
schedule is great for teenagers, as teens tend to do just fine going a full
week without seeing the other parent, and do better with fewer transitions.
With all of the activities keeping teens busy these days, many parents of
teens, like this visitation schedule. Week on/week off visitation looks like
this:
Week on/Week off Visitation Schedule
Monday | Tuesday | Wednesday | Thursday | Friday | Saturday | Sunday |
Parent 1 | Parent 1 | Parent 1 | Parent 1 | Parent 1 | Parent 1 | Parent 1 |
Parent 2 | Parent 2 | Parent 2 | Parent 2 | Parent 2 | Parent 2 | Parent 2 |
Parent 1 | Parent 1 | Parent 1 | Parent 1 | Parent 1 | Parent 1 | Parent 1 |
Parent 2 | Parent 2 | Parent 2 | Parent 2 | Parent 2 | Parent 2 | Parent 2 |
The 2-2-3, 2-2-5, and week on/week off visitation schedules
are all used when the parties are ordered to have even timeshares. Absent a
finding of domestic violence, substance abuse, or abandonment by one of the
parties, courts will be inclined to order even visitation timeshare schedules.
But what about situations where uneven visitation timeshare is appropriate? Just
like with even visitation, there are a number of uneven visitation schedules
courts can order.
Supervised Visitation
When a finding of any concerns about one of the parent’s
parenting abilities, such as in cases of domestic violence, substance abuse, or
not being in the child’s life much, the court may want to see that parent have
a few supervised visitation sessions first. This ensures there is a responsible
adult present for the visitation just in case the parent becomes inappropriate
or abusive with the child(ren), the parent appears to be under the influence of
substances, or the child experiences anything untoward during the visitation.
That other adult can intervene if necessary and terminate the visitation whilst
ensuring child safety. Then, that adult can report back to the court about how
the visitations went. From there, the court can make further visitation orders.
If the visitation supervisor reports back that the visitations all went well,
the court will be inclined to order unsupervised visitation for that parent.
However, if the visitation supervisor reports any concerns to the court, the
court can terminate the visitation, order visitation or reunification therapy
for the parent and child, or that the parent’s visitation maintain being
supervised. Typically, the schedule of supervised visits is limited to the availability
of the supervisor. Sometimes supervised visitation is ordered to be done by a
professional visitation supervisor, and other times, the parties agree on a
friend or family member to supervise the visitation. Supervised visitation rarely
includes overnights, unless the overnights can take place at the visitation supervisor’s
residence.
Every Weekend Visitation
This type of visitation is common as a next step after a
parent has graduated from supervised visitation, or in cases where one parent
cannot for whatever reason, have visitation during the week—perhaps their
rigorous work schedule doesn’t allow it, or perhaps, the parties live too far
apart for the child to make it to school in the morning. This visitation is
usually not for a very extended period of time, as the other parent is not
getting any weekend time at all.
Alternating Weekend Visitation
This type of visitation is also common as a step up from
supervised visitation, or is ordered when one parent cannot have visitation
during the week. This visitation ensures that both parents get some weekend
visitation timeshare with the child(ren).
Visitation Exchanges
Visitation Exchanges is an important concept in any
custody/visitation matter. Visitation exchanges refers to how the child(ren)
is/are exchanges between the parents. In supervised settings, the exchanges
takes place at the supervision center. If the visitation is being supervised
privately, the exchange may take place at the supervised parent’s home. If the
parties’ relationship is still relatively contentious, it might be best to have
visitation exchanges take place in a public place. I worked on one case where
the father was always twenty, even thirty minutes late to the visitation
exchanges, but denied being late to the court. As a way to track whether he was
on-time or late, the court ordered the visitation exchanges to take place at a
starbucks between the homes, and each party had to buy something from inside
and get a receipt. Then, the court reviewed all the receipts and noted that the
father indeed had been very late to most of the visitation exchanges. Thus, the
court ordered that if he was more than fifteen minutes late, he forfeited his
visit.
School visitation exchanges is also a great and easy way for
the children to travel back and forth. School exchanges have parent 1 drop off
the child(ren) at school, and the parent 2 picks up that day from school. Keep
in mind that this forces everyone to consider what the child(ren) should pack
before school on visitation exchange days, as whatever the child(ren) need(s)
for the other parent’s home will need to travel with him/her/them on exchange
days. Parents often enjoy school visitation exchanges as they are a bit easier
to fit into work schedules, and they mean not having to interact with the other
parent as much, which is very helpful in contentious cases.
Holiday Visitation Schedule
Planning out a holiday visitation schedule is very
important. Without one, you are stuck with whatever days fall on your regularly
schedule visitation, no matter what holiday it happens to be. Common
holidays to consider are any days your child(ren) has off from
school, important religious holidays, mother’s day, father’s day, and
birthdays. California has a great court form that makes it easy for you to plan
out a holiday schedule and request it from the court. This is form FL-341(c),
and can be found here: https://www.courts.ca.gov/documents/fl341c.pdf
Visitation Mediation
In California, parties are required to attend mediation
with the court’s own mediators to see if they can reach an agreement about
visitation. The court will usually (absent any emergencies) not make any
visitation orders until this is done. Remember, that you and the other parent
know your lives and children better than a stranger in a black robe. In my
experience, parties that reach visitation agreements end up having healthier
and happier coparenting arrangements with the other, and tend to have an easier
time in court. Of course, this is not always possible or even appropriate. For
example, in situations of domestic violence. However, even then, the court will
order you to attend mediation. In domestic violence cases, the mediator will
meet with the parties separately. You should be willing to settle, but do not
have to settle just for the sake of settling. The visitation terms should be
something you can live with. They might not be exactly what you want, but a
little compromise can go a long way. Settling also means less time in court and
often fewer attorney’s fees.
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