Children are always the most important issue in every family law case. They are the primary concern of
the court in any case involving child custody and visitation. California Family Code Section 3011
spells this out in detail. California law says that the judge must make custody and visitation orders based
upon the “best interest of the child.”
Essentially, in any case involving custody or visitation, the court uses a “best interest” of the child
analysis. This means the court is obligated to consider the health, safety and welfare of the child in
determining what is in their best interest. The court will also look at the age of the child, whether either
party has a drug or alcohol problem, if there has been any abuse by either parent, the nature and amount
of contact by each parent, and the child’s ties to their school, home, and community. Another key
component of the best interest analysis includes the court’s ultimate goal of granting “joint” custody when
appropriate. However, if joint custody is not in the child’s best interest, then the court is obligated to
place the child with the parent most likely to facilitate the other parent’s relationship with the child, with
everything else being equal. Frequent and continuing contact with both parents is also considered to be in
the child’s best interest unless proven otherwise.
Before diving any further into California’s law on child custody and visitation, it is important to look at
the Uniform Child Custody Jurisdiction Enforcement Act (known as the UCCJEA) which has major
implications on the jurisdiction of the California courts to even hear the case in the first place. The
UCCJEA is the uniform set of laws that nearly every state within the United States has adopted as its state
law that deals with when and where child custody cases will take place.
Under the UCCJEA, the most critical thing to look at in order to determine what state has the power to
make an initial child custody order or to modify an existing child custody order is the child’s “home
state.” Home state means the state in which the child lived with a parent for at least six consecutive
months immediately before the start of the child custody proceeding. If the is child less than six months
old, the term means the state in which the child lived from birth. Simply put, the child’s home state is
where the child has lived for at least the six months prior to the case or motion being filed. If there are
two or more child custody cases going on at the same time in different states, the family court judge is
required to have a conference call with the judge in the other state(s) to determine which court will
exercise jurisdiction over the case, and more specifically the child.
Remember! Even if California may have jurisdiction to hear a particular child custody case, the court
can always decline jurisdiction based on the theory of an inconvenient forum. This most often happens in
situations where all or most of the evidence applicable to the case is found in another state. However,
more often than not, California will exercise jurisdiction if it has it.
In California, there are two types of child custody; Legal and Physical. The two are very easy to
distinguish.
Legal custody is the right to make important decisions about the child’s health, safety, welfare, education,
religion, medical and dental decisions, where they will attend daycare, extracurricular activities, etc. In
most cases, the parents will share “joint” legal custody. This means both parents share the right and
responsibility to make decisions that are in the child’s best interest and they are required to work together
to reach these decisions. Occasionally, one parent will have “sole” legal custody. This means that one
parent alone will make all of the decisions for the child. This only happens where it is shown through
evidence that it would not be in the child’s best interest for one of the parents to be involved in the
decision making for that child. Examples of this are when one parent is absent, has abused the child, or
has shown a pattern of poor judgment.
Physical custody is the actual time that a parent physically has a child in their care. Many times there is a
“joint” physical custody order which means the child lives with both parents. Joint physical custody does
not mean that the child must spend exactly half the time with each parent, just close to it. When a parent
has the child much more than half of the time, then that parent is sometimes called the “primary custodial
parent” or they have “primary” physical custody. In this situation, the other parent usually has visitation
rights. Basically, physical custody deals with the time share percentage a parent has with the child.
Visitation orders can vary depending on the best interests of the child, the situation of the parents, and
many other factors. There are four main types of visitation: Per a parenting plan, reasonable, supervised,
or none.
The most common type of visitation is through a parenting plan. The importance of a detailed parenting
plan cannot be stressed enough. A detailed parenting plan can prevent conflicts and confusion. A
reasonable visitation order does not necessarily have details as to when the children will be with each
parent. These types of orders are open-ended and allow the parents to work it out between them. This
only works if parents get along, are flexible, and communicate well with one another. However, in the
event of disagreements or misunderstandings, this kind of schedule can cause many issues that often
result in the parents having to go back to court.
Supervised visitation is ordered occasionally and consists of the child having contact with a parent when a
neutral third person is present during the visitation. It is usually ordered based on issues of protection and
safety of the child, but can also be ordered when one parent has not seen the child for a long period of
time and the court wants the child to be comfortable and familiar with the absent parent before scheduling
unsupervised visits. The court order will specify the time and duration of the visits. It should also specify
who will provide the supervised visitation services and where the visits will take place. The court will
only order no visitation if visiting with the other parent would be physically or emotionally harmful to the
child. In these cases, it is not in the best interest of the child for the parent to have any contact with the
child.
In the rare instance that giving custody to either parent would be harmful to the child, courts will give
custody to someone other than the parents because it is in the best interest of the child. This is called a
guardianship. This is where someone who is not the parent asks for custody of the child or is ordered to
have custody of the child because the parents cannot care for them. For more information, please see the
Guardianships page (link).
Separated parents need to have a plan detailing how their child will be cared for and where they will live
or spend time. Sometimes parents can agree to a parenting plan, but other times they need the help of the
court to come up with a plan that is in the best interest of their child. In these situations, the judge will
send both parents to MANDATORY mediation, through Family Court Services or a through private
mediation if the parents agree. Mediation is required to take place before there can be a court hearing on
any issues related to child custody or visitation. The mediator will then meet with both parents, and
potentially the child, to determine what parenting plan is in the child’s best interest. If the parents still
cannot agree on a parenting plan after mediation, then they will have a court hearing and the judge will
then decide the custody and visitation schedule.
Mediation gives parents a chance to resolve disagreements about a parenting plan for the child. In
mediation, the mediator will try to resolve these disagreements. If the parents are able to work out an
agreement, the mediator helps the parents write a parenting plan that will very likely then become a
custody and visitation order once it is signed by a judge.
In San Diego, the mediator will prepare a written recommendation to the parents and the court if the
parents cannot agree to a parenting plan. This makes preparing for mediation vitally important. This
recommendation will contain the mediator’s opinion about what parenting plan will be in the child’s best
interest. The mediator may include what either parent says in mediation in the report; there is no
confidentiality. Family Court Services mediation is done at the local superior court and does not cost
either parent any additional fees after paying for the motion. The mediator usually meets with the parents
together, but can also meet with them individually in certain circumstances, such as cases of domestic
violence where one parent has the right to meet with the mediator separately or with a support person
present. The mediation may address legal custody, parenting plans, holiday and vacation schedules,
transportation, and other areas that relate to the needs of the child.
There are a number of factors that are considered when determining if a child will be interviewed by
anyone through the court process. The most important determining factor is the child’s age. Young
children are not interviewed. Children that are 14 years old or older that express a desire to speak to the
court about their wishes will be permitted to, unless the court determines that it would NOT be in the
child’s best interests to do so. Children are most often interviewed by the mediator. However, in rare
cases they will testify in court or in the judge’s chambers privately.
In some cases, the judge may appoint a child custody evaluator to do a custody evaluation and
recommend a parenting plan. A custody evaluation is an investigation into the facts of the case. Usually,
the investigation includes interviews with the parents, children, and other people who may have
information about the situation, like teachers, doctors, daycare providers, therapists, or other adults the
child has interactions with. It can also include other important documents that relate to the family, like
court records or police reports. The evaluator may also visit both parents’ homes and the child’s school.
They can even require that one or both of the parents have a psychological evaluation. A parent can also
ask for an evaluation, but the request is not always granted and the parents will often have to pay for the
evaluation too. An evaluation usually takes at least 60 days to complete, but some can take much longer.
When the investigation is complete, the evaluator will write up a report describing what they found and
make a recommendation to the court for a parenting plan. This report will be sent to the judge and the
parents or their lawyers, and there will be court hearing sometime after the report is delivered.
The judge also may appoint lawyers for the child in custody cases, referred to as minor’s counsel. They
do not represent either parent, but only the child. Their primary function is to report to the court in
writing or orally in certain circumstances. They report about the background of the parents and child, the
relationship between the parents and child, the child’s wishes, and other related issues. The judge will
also decide who will pay for the child’s lawyer’s fees. Neutral experts, such as the mediator, minor’s
counsel, or the evaluator, hold substantial weight and credibility in the court’s eyes because they do not
have any other interest in mind besides the child’s.
Remember! Child support is often directly linked to custody and visitation because the amount of time
each parent spends with the child is a major factor in determining the amount of child support to be paid.
A parent cannot refuse to let the other parent see the child just because they are not making the child
support payments that the court ordered. Likewise, a parent cannot refuse to pay child support just
because the other parent is not letting them see the child. For more information on this issue, please see
the page on Child Support (link).
After a judge makes a custody or visitation order, either parent may want to change the order. If the
parties both agree to the change, the judge will very likely approve the new agreed upon custody and
visitation order. If the parents cannot agree on a change, one parent can ask the court for a change by
filing a Request for Order. That parent will have to show that there has been a significant change in
circumstances or other good reason to change the current order. This can be as simple as the child getting
older or changing grade levels at school, or it could be something as difficult as a parent relocating (see
Move Away page link). Generally, either parent can request a change of custody or visitation after at
least one year has passed under the current order, but not always. In the event the other parent violates
the court order, the wise move is to log a violation with the San Diego County District Attorney’s Office
and contact the local police department. If the other parent kidnaps the child or flees with the child to
another state or country, the first step would be to contact the District Attorney’s Office Child Abduction
Unit.
Remember! Many custody cases involve parents disagreeing on the facts. This is often because of
miscommunications between the parents, disputes as to the amount of time a child spends with a parent,
or the level of involvement of a parent with the child. This makes it very important to keep good records.
Records should include emails, texts, and phone records. Keeping a log of visitations and time spent with
the child has proven to be highly beneficial as well.