One of the most emotional and highly contested issues of family law and divorce is child custody. Many times the parents cannot agree as to who is going to have custody of the children and what is going to be the visitation plan.
Child Custody Mediation
In California, a parenting plan spells out the custody and visitation arrangements for the parties and their children. The plan itself can be fairly broad—leaving the parents room to make adjustments as they go—or highly specific, providing a strict schedule for alternating custody or allowing visitation. Ideally, the parties can develop their own parenting plan without the need for judicial intervention.
A judge must still approve any parenting plan, but such consent is usually granted when the parties work out the details among themselves. No judge wants to wade into complicated questions about custody if it can be avoided. But there are cases where the parents simply cannot agree on a parenting plan. If that is the case, the judge may refer the parties to Family Court Services (FCS), a mediation program offered by the California superior courts that can help parents reach an agreement.
Mediation is not litigation or arbitration. A mediator will not impose a parenting plan or try to convince the parties to reach a particular decision. Instead, the mediator is there to listen to both sides and guide their own discussion. Mediation allows both parents to address each other in a confidential environment without interference from attorneys or other outside parties.
Mediation may not always result in an agreement. In some cases, that means a judge will have to decide how to divide custody and visitation rights. The parents may also pursue other methods of dispute resolution aside from FCS mediation. The parents can hire their own mediator to continue negotiations. They can hire attorneys to conduct out-of-court negotiations. In some California counties, they may even be able to meet with another judge or attorney not involved with the case who can provide an outside perspective.
There are also cases where mediation may simply not be a viable option because there are allegations of domestic abuse or one of the parents does not wish to meet alone with the other. Family Court Services can suggest options in such cases. But it is important to remember that mediators do not serve the same function as attorneys. If a parent needs legal advice, he or she should hire an attorney to represent their interests alone.
Child Custody Disputes
When a child custody or visitation dispute arises in California, the parties must attend Family Court Services and attempt to reach an agreement. Although each county is different, in San Diego if the parties cannot reach an agreement, the Family Court Services mediator makes a written recommendation to the court which can be followed by the judge or can be modified. The Law Office of Steven L. Fritsch has the knowledge and experience dealing with custody and visitation issues and will prepare you for this important mediation and if an agreement is not reached, will aggressively represent you in court and work to resolve the custody issues with the opposing party and his or her attorney.
Sometimes a parent wants to move to a new county, state or country with the minor children. This is commonly called a “move-away”. “Move away” cases are generally contentious because the parent who is remaining in the county where the original custody visitation order was made does not agree that the child may move with the other parent. There are specific rules and laws that apply specifically to “move away” cases. If you are the non-custodial parent you also have certain rights that you may exercise before the court makes its decision.
How are Custody and Visitation Rights Determined
California courts used to grant automatic custody rights to mothers. This is no longer the case, even if the child or children are very young. Custody and visitation rights are now secure for non-married parents, disabled parents, and parents of every lifestyle, religious perspective and sexual orientation. Given that the system tends to be inclusive of many different kinds of parents, you will likely need to agree to a custody plan with your former spouse. In all instances, the parents are either able to come to a custody agreement or the parents are unable to come to a custody agreement. The following paragraphs will describe what occurs in each scenario.
If you are able to agree on a custody plan
If you are able to agree on a custody plan, you will need to present the plan to the judge. Since family law judges are sensitive to the needs of the parties, your plan is likely to be approved. You will need to be sure that the “best interest” of the child is reflected in the custody plan. A family law attorney will help you build a plan that meets the legal definition of the child or children’s “best interest.”
If you are unable to agree on a custody plan
The majority of spouses are able to agree on a custody plan. If you cannot agree and the situation becomes acrimonious, the judge will likely recommend a mediator. The impartial mediator will try to bring you and your spouse to a mutually agreeable plan. If the mediator is unable to do so, he or she will recommend a parenting plan to the judge.
Who Gets to Claim the Children as Dependents When Divorced?
According to federal law, the parent that has the child the majority of the time (51% or more) gets to claim the children. If the custodial parent allows the other parent to claim a child or children, the custodial parent should file IRS form 8332 “Release of Claim to Exemption for Child by Custodial Parent.
Despite the law regarding which parent claims the exemption, there are times when it may be beneficial for the noncustodial parent to claim the exemption. If the custodial parent has little to no income, the exemption is useless and therefore is more beneficial for both parties if the noncustodial parent takes the exemption. By doing so, it will generally increase the guideline child support amount the custodial parent will receive because he or she is not claiming the child. In this type of situation it is a “win-win” for both parties. The noncustodial parent gets to claim the children and the custodial parent gets more child support. As stated previously, the custodial parent can always allow the noncustodial parent to claim the children. Sometimes the decision to allow this is weighing the benefit have having more child support on a monthly basis or getting the tax exemption when he or she files taxes.
In situations when it is a true 50/50 custody arrangement the court will many times alternate the claiming of the exemption if there is one child or allow each parent to claim a child if there are more than one child. Once again, whether these scenarios are advantageous depends on the incomes of each party.
In deciding whether to allow the noncustodial parent to claim the child or children as an exemption, one should consult his or her tax preparer to determine the best course of action.
When Should the Custodial Parent Allow the Non-Custodial Parent to Claim the Child?
When the custodial parent receives no financial benefit from claiming the child. This may happen when the custodial parent’s income is so low that claiming the child has no financial benefit to him or her. In these type of situations, the custodial parent is essentially wasting the exemption and losing out on more child support because if the custodial parent takes the exemption their child support will be lower. Rather, if the custodial parent allowed the non-custodial parent to claim the child, the child support would increase. If spousal support has also been ordered, it may affect whether the custodial parent takes or gives away the exemption. Most family law attorneys have computer programs that can show what the child support calculations would be depending on who takes the exemption. It would also be advantageous for the costodial parent to contact whoever prepares his or her taxes prior to the court hearing to determine if he or she would receive a greater financial benefit from claiming the child or not.
As you can see, failing to address the exemption issue, could cause the custodial parent to give up money that he or she could receive. Therefore, it is important to carefully analyze this issue in order to receive the greatest financial gain.
California Visitation and Types of Custody Arrangements
In California, a family court judge must consider “the best interests of the child” in determining custody arrangements. There is no fixed definition of “best interests”; the court must look at all facts and circumstances, including the child’s age, family and community ties, as well as the parents’ relative ability to provide financial and emotional support.
It is important to understand that child custody arrangements fall into two categories: legal and physical custody. Legal custody refers to the parent who makes important life decisions regarding the child’s health, education and maintenance. Physical custody simply refers to who the child lives with.
Legal custody
A court may award legal custody to one or both parents. If there is joint legal custody, each parent may make decisions for the child, even without the consent of the other parent. It is, of course, advisable for parents with joint legal custody to try and reach a consensus in order to avoid any confusion.
Only a parent with legal custody can make decisions about the child’s home, school, religious instruction, activities, health care or travel. In the event a court awards sole legal custody to one parent, that parent’s wishes on these issues are binding, even if the other parent strongly disagrees.
Physical custody
If one parent is awarded physical custody, then the child will live with that parent most of the time. If the court agrees to joint physical custody, then the child will live with both parents. This does not, however, necessarily mean the child must spend exactly 50% of his or her time with one parent and 50% with the other parent. One parent will likely be the “primary” custodial parent.
A parent who does not have physical custody may still have guaranteed, regular access to the child through a visitation order. Such an order establishes the terms and conditions whereby one child may spend time with the non-custodial parent. A visitation order may provide for a precise schedule—e.g., the child spends every other weekend with the non-custodial parent—or it can leave the matter open-ended for the parents to work out for themselves on an ongoing basis. In some cases, if there are safety concerns, an order may provide for supervised visitation, where a custodial parent or other adult is present when the child is with the non-custodial parent.
Do We Need a Judge to Determine Custody Arrangements?
In most cases, parties are able to work out child custody arrangements for themselves. A judge must still sign off on any arrangement to make it legally binding. If the parents fail to reach an agreement, a judge will then step in and determine custody arrangements according to the best interests of the child.
Child Visitation Schedule Examples
In most cases, when a couple gets divorced it is beneficial for the children involved to spend time with each parent, Custody agreements, also called parenting plans combine two different elements: Decision Making and Time Sharing, Decision making, which has traditionally been referred to as “legal custody” involves making important decisions that could have a major impact on their life. Examples would include where they go to school or church or whether or not they should be allowed to try out for the football team. Time Sharing, is also known as physical custody, and in most cases either the parents themselves or the judge will come to an agreement regarding when children should spend time with each parent. In many cases, the exact schedule may need to be tweaked or altered, but a general base of recommended schedules offer families a good place to start.
Dividing Time
For most families where both parents live relatively close to one another, one of these schedules is implemented to start.
- Alternating weekends with non-custodial parent – This arrangement may be good for children who are not close to the noncustodial parent, and who may experience anxiety if they are separated from the custodial parent for too long. In these situation, the noncustodial parent may reserve the right to ask the court for more time once the child becomes more open to the option.
- Alternating Weekends with a midweek visit. This schedule gives a bit more time for the non-custodial parent and also gives the other parent a midweek break. It also gives non-custodial parents a chance to deal with more practical issues, such as homework. The midweek visit is normally kept to a couple hours before the kids return to their primary home
- Alternating extended weekend; Friday evening to Monday evening. An extended weekend offers a non-custodial parent more time with more days in a row. This is good for parents who like to stick with neutral exchanges. All pick ups and drop offs can be at school, and the kids can keep an abbreviated wardrobe at the non-custodial parents home to avoid heavy packing.
- Alternating extended weekend with a midweek visit – This plan gives families a chance to have several days together, but also gives them the chance to regroup and catch up before too many days have gone by.
- Alternating weekend with a midweek overnight stay – This can work well for children who are equally comfortable with both parents.
- Alternating extended weekends midweek overnight stay – This plan actually borders on equal time between the custodial and non-custodial parents
- 1st, 3rd and 5th weekends, which may be extended and may include a midweek visit or an overnight stay – Whether the weekend is extended or not, this schedule can be a little easier to keep track of, especially when making plans several months in advance. There’s less chance of counting wrong and getting mixed up as to whether it is the right weekend or not.
Arranging Holidays
Holiday schedules depend a lot on whether both parents live close to one another or not, as well as their personal holiday tradition. Some work out a schedule where both parents spend time with kids on the holiday every year, but one gets mornings/early afternoon, and the other gets mid afternoon to evening. In some cases, an individual parent will have full reign over the day, but they will only get this every other year.
Input From the Kids
The older the kids are, the more likely they are to have a life of their own that has very little to do with their parents. For example, if they get together for a special time with friends or are involved in an extra-curricular activity every Wednesday, they may begin to resist the idea of having their own plans spoiled just to keep a schedule. It is important that parents take the time to take a child’s schedule into consideration, but it is also important to stress the importance of spending time with both parents. They should know that their opinion is heard, but they should also know that they will not be allowed to make excuses in order to disrupt the custody plan.
Another way to keep parent/child relationships strong is to encourage children to interact with their other parent if they want to . This could include calling them, sending them an email, or even communicating online by chatting or using video communication such as Skype.
Since the needs of kids change as they get older, as do the needs of the parents, it is not unusual for one or both parents to ask for revisions in their custody agreements.
Establishing Custody When the Divorce is Contentious
When you are in the middle of a difficult divorce, it’s important to establish a solid parenting plan right at the beginning. It doesn’t matter if you’re going to fight over every last dish, your children deserve the structure and stability a clear parenting plan provides. As you consider a visitation schedule, think about what will work best for the kids first. Think about any school schedules, distance from each residence to activities, and time you aren’t working to come up with a good plan.
Make a Parenting Schedule Right Away
It’s hard enough on your kids, when both of their parents decide to split. They need stability, and a routine they can count on will help make the split a little easier on them. When you have children and you are going through a divorce, the first thing you should establish is a parenting schedule. The faster you can create a plan that works for everyone, the quicker your children will be able to adjust to their new circumstances.
Be Reasonable When Establishing a Custody and Parenting Arrangement
Although a contentious divorce is difficult to go through, you have to take a step back and try to be reasonable when it comes to your children. Look at the relationship your children have with each parent, and remember that children do best when they are allowed to continue to have a strong relationship with both parents. While you may hate the other person, your children love them. While you may want to point out every flaw the other parent has, this is not going to help your children when it comes down to establishing custody.
Clarify Your Concerns Regarding Custody
If you have legitimate concerns regarding your ex’s ability to parent your children, be clear on what your concerns are. While you may not like their parenting style, this is not a reason for your concern. On the other hand, if you are worried that the other parent has a continual drug or alcohol addiction, this needs to be discussed. When you make a parenting plan and you don’t raise your initial concerns, it will be much more difficult to get a custody arrangement changed later.
Respect the Needs of Your Children
Children do not need to be put in the middle of your divorce. They need to know that both parents love them, and that both parents want to be part of their lives. Grilling the children about what the other parent is doing will put them in the middle. Telling your children how horrible the other parent is will only confuse them. Respect the needs of your child by enjoying them when they are with you, doing your best to parent them. What the other parent’s personal life looks like is none of your business, and you will do better to move on.
Consider What Your Children Want
Little children aren’t really able to verbalize what they want out of a custody arrangement, but older children can. If you have a teenager, for example, they may want to stay in the same home during the week while they are at school. They may have a very busy life, and not be interested in hanging out after school. Maybe you were an absent parent, always on the road working. While it may be hard to agree that the child should spend more time with the other parent, your sacrifice will make the divorce easier on your children.
Think About Your Support Network
Having children is hard, and raising them without a support network is nearly impossible. Think about your new life, and how being divorced is going to impact your support network. If you had a close relationship with your mother-in-law who always babysat, you can forget that resource. Look at the people around you, and those you believe will still be around once the dust settles from your divorce. While you can’t create a custody schedule based on support alone, it’s important that you have the help you need if an emergency arises.
Use One Form of Communication with Your Ex
If the two of you struggle to communicate in a civil manner, it’s important to establish one form of communication right away. Many couples utilize an online software program, where both parties can send messages, a calendar can be created, and all communication between the two of you can be recorded in one place. The court system will look at this communication when there are issues brought forth to the court, and both parties will be held responsible for what they are communicating with the other person.
Understand Your Rights as a Parent
When there are no concerns raised, you have the right to parent your children 50% of the time. While this may be difficult, it’s important to understand that you have the legal right to be in the lives of your children on a regular basis. Shared legal and shared physical custody entitles you to regular visitation, and decision making in all aspects of their lives, including education and medical decisions. While the other parent may try to prohibit you from making decisions, you need to know that you have the legal right and obligation to help make these decisions. You should be attending school meetings, appointments with medical providers, and any other important events that occur on behalf of your child.
As you go through your contentious divorce, it is always best to keep the needs of the children in the front of your mind. While you may want to fight the other person for certain assets, you have to start by thinking about the type of parenting plan that will work best for your children. They need to know that you are there for them, that you are ready to take care of them, and that you love them unconditionally.
Divorce is hard enough on children, don’t make it harder by refusing to negotiate a reasonable parenting plan.
Steven L. Fritsch, Esq. has litigated and resolved many “move-away” cases. If you are planning to move with your children or want to oppose a move-away please call the Law Office of Steven L. Fritsch to discuss your individual case.
