Custody and Visitation

Custody and Visitation

At Moradi Saslaw LLP, our family law attorneys in San Francisco and San Mateo recognize that child custody and parental visitation are the biggest concern for many clients. We will help you to create a custody and visitation plan best suited for your family and negotiate on your behalf to reach an agreed-upon plan.

Factors in Custody Award

In California, the court makes decisions on child custody and visitation based on what it believes is in the best interest of the child. The court takes into account a number of factors in making this decision. In addition to protecting the child’s health, safety and welfare, a custody arrangement must encourage frequent and continuing contact with both parents, unless there has been a history of child abuse or domestic violence.

Types of custody arrangements: Physical vs. legal custody, sole vs. joint custody.

In a custody order, the court will make a decision on both physical and legal custody. Physical custody refers to which parent the child is living with at any given time. Legal custody refers to the right to make decisions about the health, education, and welfare of the child.

Additionally, the court will make a decision on whether the parents have joint (shared) or sole custody. To recap, California contemplates that child custody can be awarded in a number of ways:

One parent has sole physical and sole legal custody.

An award of sole physical custody means that the child will reside with one parent. The noncustodial parent will usually have visitation rights as ordered by the court. An award of sole legal custody means that only one parent will have the exclusive right to make decisions regarding the child’s residence, health, education and welfare; the other parent lacks such rights.

One parent has sole physical custody; the parents have joint legal custody.

An award of sole physical custody means that the child will reside primarily with one parent. The noncustodial parent will usually have visitation rights as ordered by the court. An award of joint legal custody means that both parents share the right and responsibility to make decisions regarding the child’s health, education and welfare. This does not mean the parents must confer and agree. In contrast, it means that each parent has the independent right to make such decisions, unless otherwise ordered by the court.

The parents have joint physical custody; one parent has sole legal custody.

An award of joint physical custody means that the child will reside with both parents in a way to ensure frequent and continuing contact with both parents. However, that does not mean the child’s time must be equally divided with each parent. It is very common for parents to have joint physical custody, but one parent is still the primary caretaker, and the timeshare is unequal. An award of sole legal custody means that only one parent will have the exclusive right to make decisions regarding the child’s residence, health, education and welfare; the other parent lacks such rights.

The parents have joint physical custody and joint legal custody.

An award of joint physical custody means that the child will reside with both parents in a way to ensure frequent and continuing contact with both parents. However, that does not mean the child’s time must be equally divided with each parent. It is very common for parents to have joint physical custody, but one parent is still the primary caretaker, and the timeshare is unequal. An award of joint legal custody means that both parents share the right and responsibility to make decisions regarding the child’s health, education and welfare. This does not mean the parents must confer and agree. In contrast, it means that each parent has the independent right to make such decisions, unless otherwise ordered by the court.

Modification of Custody Orders

Because of California’s interest in the welfare of minor children, the court always has jurisdiction to make or change custody orders, even after a divorce is finalized. In fact, changes to custody agreements are quite common as children become older and families change.

The decision to modify an existing custody order will depend on whether the previous order was a temporary order or a final order. If the previous custody order is a temporary order, the court will determine what would be in the best interest of the child. If the previous custody order is a final order, the court will determine whether there has been a sufficient change in circumstances that so affects the child that modification is necessary to the child’s welfare.

Such changes in circumstances include (but are by no means limited to):

  • Change/proposed change in residence of one of the parents. (This may require a motion for a “move-away order”)
  • The desire of an older child to increase or decrease visitation
  • Alteration of the child’s school schedule
  • Evidence of child abuse