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Child Custody
& Visitation
Child custody
and visitation disputes can be emotional, heated and sometimes
very expensive. While the right legal representation can make a
significant difference in this respect, much of the ability to
resolve custody disputes comes from the parents' willingness and
ability to compromise. If the parents are unable to do so, the
case must proceed to trial and the decision of custody and
visitation is decided by the judge.
The most important factors that Orange
County judges take into consideration before deciding what is in
the "best interests" of the child are:
• Age, gender, and stage of development of
the child
• Emotional, social, and educational needs
of the child
• Health, welfare, and safety of the child
• Level of communication and cooperation
between parents
• Parenting ability and psychological
adjustment of each parent
• Quality of the parent-child relationships
• Parental support systems
• Cultural factors
Orange County courts often call their
custody orders "parenting plans". This parenting plan specifies
both Legal Custody and Physical Custody, both of which we will
discuss below. Let us first look at the definition of certain
important terms:
Joint Legal Custody: Joint legal custody
means that both parents shall share the right and the
responsibility to make the decisions related to the health,
education and welfare of the child. In making an order for
custody with respect to both parents, the court may grant joint
legal custody without granting joint physical custody. In other
words, parents may share joint legal custody without sharing
joint physical custody.
Practically speaking, joint legal custody
means the following:
• The parent who has the physical care of
the child at any given time shall have the routine decision
making rights and responsibilities during those periods of time;
however, all major decisions pertaining to health, education,
and day care shall be made jointly by the parents. No prior
consultation is required between the parents regarding emergency
medical or dental treatment, routine checkups, or minor illness.
However, the other parent shall be notified immediately in the
case of an emergency. A sharing of routine health information is
encouraged.
Notwithstanding any other provision of the
law, access to records and information pertaining to a minor
child, including, but not limited to, medical, dental, and
school records, shall not be denied to a parent because that
parent is not the child's custodial parent.
Each parent shall keep the other advised
within a reasonable time when the minor child visits with the
doctor, hospital, or place of medical treatment (excluding
checkups), including the date of the visit, the name and address
of the doctor, the condition treated, the results of the
treatment, and a description of any follow-up appointments made.
Parents are responsible for keeping
themselves advised and for advising each other of all school,
athletic, and social events in which the child participates
including but not limited to school report cards, school meeting
notices, requests for school conferences, notice of activities
related to the child, and order forms for school pictures.
Each parent shall keep the other advised at
all times of his/her current residence and business address,
telephone numbers (home and work), the child's school and
daycare, and the location of where the child will be spending
any extended period of time (two days or more).
Each parent is to provide the other with
the address and telephone number at which the minor child
resides. A parent shall notify the other parent if the parent
plans to change the residence of the child for more than thirty
(30) days, unless there is a prior written agreement to the
removal. The notice shall be given before the contemplated
move, by mail, return receipt requested, postage prepaid, to the
last known address of the parent to be notified. A copy of the
notice shall also be sent to that parent's counsel of record. To
the extent feasible, the notice shall be provided within a
minimum of forty-five (45) days before the proposed change of
residence so as to allow for mediation of a new agreement
concerning custody.
Neither parent shall enroll the child in
activities that require a commitment from the other parent or
interfere with a previously agreed upon or court ordered
schedule without mutual approval.
Neither parent shall submit the child to
any psychological/psychiatric testing or evaluation or to any
extended course of medical, dental, orthodontic, psychiatric, or
psychological treatment/counseling without the consent
(preferably written) of the other parent or court order.
Both parents' consent and/or court
authorization is needed before changing of the child's surname,
obtaining a passport and driver license, and approving underage
marriage or enlistment in the military.
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Sole Legal Custody: Sole legal custody
means one parent shall have the right and the responsibility
to make the decisions related to the health, education and
welfare of the child. Sole legal custody is rare and granted in
the most extreme cases involving abuse, neglect or issues that
may cause a serious risk of endangerment to the child.
Joint Physical Custody: Joint physical
custody means that each of the parents shall have
significant periods of physical custody of the child. Joint
physical custody requires that actual timeshare with the child
be shared in such a way so as to assure a child frequent and
continuing contact with both parents.
Sole Physical Custody: Sole physical
custody means a child shall reside with and be under the
supervision of one parent, subject to the power of the court to
order visitation for the other parent.
What about the child's wishes? The court
does consider the wishes of children who are of "sufficient age
and capacity to reason so as to form an intelligent preference
as to custody." While there is no magical age, the main issue
is whether the child is old enough to understand the issues
about which he or she is expressing his or her wishes.
Finally, we must look to the "standard" the
court applies in initial custody determinations (before any
court orders) verses modifications of court orders. Simply put,
if there is no current order or the order in effect is not a
"final order", the court simply looks at the child's best
interest. However, if there is a final order and one parent is
seeking a modification of it, then the court must find that
there is a "changed circumstances". Often, these changed
circumstances since the last court order must be significant.
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