Custody and Visitation Law in Los Angeles

By: Warren R. Shiell
Submitted: 2007-01-17 16:23:32
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Custody and Visitation in the Divorce Process in Los Angeles

How can parents decide on a parenting plan?

Parents who separate must have a parenting plan for deciding how they will share parenting responsibilities. A parenting plan must be in writing and signed by both parties and a judge to be enforceable.

What if parents cannot agree on a parenting plan?

If parents cannot agree on a parenting plan on their own they may go to court and ask a judge for a temporary order. The Court will first send them to Conciliation Court where a trained mediator tries to help the parties agree on a parenting plan. In Los Angeles conciliation services are free. An appointment can be made by calling conciliation services at (213) 974-5524.

If the parties still cannot agree, the Court will make a temporary custody and visitation order that is in the best interests of the children. The temporary order will continue until the parties can reach an agreement or until custody and visitation is resolved after a trial.

If parents cannot agree on custody and visitation, they can also ask the court to appoint a mental health expert such as a psychologist to carry out a custody evaluation. A list of custody evaluators can be found at the Los Angeles Court's web site at www.lasuperiorcourt.org.

What goes into a parenting plan?

When parents decide on a parenting plan they should develop a plan around the needs and best interests of their children and not their needs or schedules. In other words, they should adjust the plan to the children, not the children to the plan. Parents should be looking at their children's need for love, emotional support and security. Parents should take into account their children's age, personality and experiences. Children will generally be better off when both parents are involved and participating in their upbringing.

Any parenting plan will have to make provision for who gets "legal" custody and who gets "physical" custody of the children.

"Legal" custody means which parent gets to make important decisions about the children's education, religious upbringing, medical treatment and other legal decisions. If one parent gets to make these decisions they have "sole legal custody." If both parents get to make those decisions together, they have "joint legal custody." It is rare for one parent to be granted sole legal custody unless there is a history of the parents being unable to communicate. In deciding on issues relating to legal custody, form "Joint Legal Custody Attachment" FL-341 (E) which has been approved by the Judicial Council of California is helpful. It can be found at www.courtinfo.ca.gov/forms/.

"Physical" custody means who the children live with on a daily basis. A parent has "sole" physical custody if the primary residence of the child is with that parent. The non-custodial parent then has visitation rights. The parents have "joint" physical custody if the children live with each parent for significant periods of time during the week.

A parenting plan should be consistent and detailed. It should spell out who gets the children when and where in enough detail so that it is easy to understand and enforce. Important questions are who has the children in the week and on the weekends? Who transports the children for exchanges and to activities? Who gets the children on holidays and vacations? To get ideas for parenting plans you can take a look at forms "Child Custody and Visitation Attachment FL-311 and "Children's Holiday Schedule Attachment." These forms have been approved by the Judicial Council of California and can be found at www.courtinfo.ca.gov/forms/.

Are there typical parenting plans?

The answer is no. Each parenting plan should be tailored to the needs of each family. The following are, however, examples of timeshares that often form the basis of parenting plans.

Freeman Order: One parent has primary custody and the other has visitation on alternate weekends and one evening a week.

2-2-3 timeshare: In week one, Parent 1 has physical custody on Monday and Tuesday (2), Parent 2 has Wednesday and Thursday (2), and Parent 1 has Friday, Saturday and Sunday (3). In week two, Parent 2 has Monday and Tuesday, Parent 1 has Wednesday and Thursday, and Parent 2 has Friday, Saturday and Sunday, and so on.

2-2-5-5 timeshare: This is generally more appropriate for older children. In week one, Parent 1 has physical custody on Monday and Tuesday (2), Parent 2 has Wednesday and Thursday (2), Parent 1 has Friday, Saturday, Sunday, Monday and Tuesday (5). In week two, Parent 2 has Wednesday, Thursday, Friday, Saturday and Sunday (5), and so on.

Some state courts have developed model parenting plans that take into account what is appropriate for children of different ages. The Supreme Court for the State of Arizona has developed a model parenting plan that can be found at: www.supreme.state.az.us/dr/Text/ModelPTPlans.htm.

Any tips for making a parenting plan work?

• Use a calendar so each of you knows the children's schedules. Put it in a place that's easy for you and the children to see.
• Communicate in a civil and timely manner with the other parent when scheduling conflicts arise. The more notice you give, the better. These days email and other online calendaring tools can be effective.
• Never put the children in the middle of fights.

How do we modify a parenting plan if circumstances change?

Once a parenting plan has been signed by a Court, the parties can change the plan by agreement which they then submit to the Court. If they cannot agree a party can request that the Court modify the plan. If the plan is part of a final custody determination that party must prove that a change is in the best interests of the children and also has to show that there has been a substantial change of circumstances.

I'm afraid that my spouse poses a threat to the kids when they visit. What can I do?

If there has been domestic violence or one parent believes that the other poses a risk to the children, the Court may order supervised or monitored visitation. Visitation may be supervised by a professional or non-professional monitor such as a friend or family member. When choosing nonprofessionals parents should chose more than one so that no visits are missed for lack of a monitor.

The other parent wants to move out of state. What can I do?

In recent years several appellate court decisions have settled the following rule regarding move-aways. If there has been no court order, the Court looks to the best interests of the children. If there has been a Court order and one parent wants to modify that order by moving out of state the legal standard depends on whether the Court order provides for joint custody. If the parents have joint custody, the court decides what is in the best interests of the child. However, if one parent has primary physical custody (more than 60%) it is much harder for the non-custodial parent to prevent the move away. They must prove that the move is being made in bad faith or would be detrimental to the welfare of the child.

Links www.lasuperiorcourt.org
www.courtinfo.ca.gov/forms/

www.camft.org

Article source: Expert Articles