Child Custody and Visitation Factors

What are some of the main issues the courts consider when deciding child custody and visitation?

In California, and in many states, the law states that courts must give child custody according to what is in the best interest of the child or children. This is true whether you are before the judge to establish a new parenting plan or modify an existing child custody and/or visitation order. Primarily, they take into consideration the children’s health, safety and overall wellbeing to decide whether to give custody to one or both parents.

That being said, what is “the best interest of the child”? Factors the courts will consider in making this determination include, but are not limited to:

• the age of the child,
• the health of the child,
• the emotional ties between the parents and the child,
• the ability of the parents to care for the child,
• history of family violence and/or substance abuse, and
• the child’s ties to school, home, and his or her community.

Despite what many people think, the Courts do not automatically give custody to the mother, no matter what the age or sex of your children. In addition, Courts cannot deny a parent's right to custody or visitation just because you were never married to the other parent, or because you or the other parent has a physical disability, or a different lifestyle, religious belief or sexual orientation. Again, it goes back to what is in the "best interest of the child."

Consistent with the "best interest of the child" philosophy, in some cases, if giving custody to either parent would harm the children, courts can and will give custody to someone other than the parents because it is in the best interest of the child(ren). Usually, this is type of custody is called “guardianship,” where someone who is not the parent asks for custody of the children because the parents cannot adequately care for the child or children.

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California Child Custody

While each state varies with regard to child custody and visitation laws, the factors considered by the courts are very similar in principle, namely what is in the best interests of the child. For instance, in California, the court has the power to make an order for the custody of a minor "that seems necessary or proper."

Primary concern is given to the child's health, safety and welfare. In addition, frequent and continuing contact with both parents is of great importance in determining child custody.

In short, custody and visitation determinations are to be made from the standpoint of the child's best interest. In making the "best interest" determination, the court can consider any "relevant" factors, such as taking into account the child's health, safety and welfare and whether there is any history of physical abuse.

Because the California Courts are obligated to lean toward shared parenting, increasing one's child custody rights and visitation time is available to most parents. Furthermore, the courts and now more open and accessible to those who want to, or need to, represent themselves due to financial constraints.

With the affordable help of a professional, legal document preparation company, parents can now assert their parental rights for less money than ever before. What's more impressive are the legal services out there that are actually provided by licensed attorneys, and not just legal document preparers.

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What are the different types of child custody and what do they mean?

Often you hear people talk about having joint custody of their child, but many use the term loosely and not everyone knows what they mean. Well, here is a brief summary:

First and foremost, understand that custody can mean one of two things: 1) legal custody; and 2) physical custody.

What is Legal Custody? Legal custody involves who has the decision making authority with regard to the child's health, education and welfare. It is the right and obligation to make decisions about a child's upbringing, including schooling and medical care. For instance, if one parent has sole legal custody, this entitles one parent to make the decisions affecting the health, education, religious training, and other major issues regarding the child. The sole custodial parent may consult with the other parent as to his or her opinion, but the ultimate authority to make the decision ultimately rests with the parent who has sole custody.

However, just because a parent has sole legal custody does not mean that the other parent has no rights as to decisions affecting the child. If the noncustodial parent is against a decision, the parent can file a petition with the court and the court may decide what is in the best interest of the child by changing custody or by entering an order directing a parent to do something or refrain from some action.

Many states typically have both parents share legal custody of a child.

What is physical custody? Physical custody is what you would think, which is who physically has custody of the child. In essence, it is the right of a parent to have his or her child live with him/her.

What is Joint custody? Joint custody is an arrangement by which parents who do not live together share the upbringing of a child. Joint custody can be joint legal custody, joint physical custody, or both. Joint custody requires both parents not only to consult with each other regarding the child, but also requires that the parents come to an agreement as to what they are going to do regarding major decisions affecting the child.

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Tips to Representing Yourself in Court for Child Custody, Visitation or Child Support

Make no mistake about it, you can be successful serving as your own counsel in a child custody, child visitation or child support hearing. However, understanding the custody process is an important key to success.

Arrive at the Courthouse early:
Don't add any more stress to yourself. Know how to get to the courthouse, and what courtroom your in, in advance of your court date. Arrive at the courthouse early so that you are not in a rush. Also, this will allow for additional time if you case has changed courtrooms or if you need to find out what courtroom in which your case will be heard.

What to Expect:
While there are formal rules for speaking in family court, the proceedings is generally less formal than a trial. Often, the judge will take the lead and ask questions, but you still will have to present your material in an organized, concise and professional manner.

What to Bring:
Always assume that the burden of proof is on you to prove your case in any legal matter. As such, be prepared to provide factual records and evidence that supports your claims. The judge often will not accept any verbal statements without proper documentation. You should bring copies of all your financial records, receipts related to raising your child, and logs of the time you spend with your child or children.

Witnesses may also be called upon to support you case, but keep in mind that they must be credible witnesses.

Overlooking the need for evidence is a common mistake made by those who represent themselves. You can never have too much written information to support your case. Err on the side of caution and bring any document that you think may be relevant. You don't necessarily have to present everything to the judge, but you have it just in case.

Most often, the court will require you to fill out a financial statement in advance of your hearing, but this is not a substitute for things like bank records, pay stubs, and income tax returns. Make sure you are organized with this information or you will hurt your chances of being successful.

How to Present Your Case:
1. First and foremost, always be respectful to everyone in the court room, including the other party and his/her attorney, if applicable.
2. Dress professionally. Wear a shirt and tie or formal business attire if you are female.
3. Show your knowledge of the court process and answer questions. If the judge asks a question, answer the question. Don't give some long, drawn-out story that never even answers the question. Give truthful, clear and concise answers.
4. Never argue with the judge.
5. Address the court as "Your Honor."
6. Address all comments to the court directly and do not argue with the other party.
7. Practice your court presentation in advance. You will be asked to summarize your case in the beginning, so be sure to outline the key reasons for why you deserve custody or whatever else you are requesting. You also need to demonstrate a logical flow in your reasoning. Prepare an outline a few days before your hearing. An outline will ensure that you present your argument in an organized fashion and so that you don't forget anything important.

To speak with an experienced attorney to find out more, CLICK HERE!

Low Cost Option for Cases of Child Custody, Visitation or Child Support

In these times of a depressed economy, now more than ever, many people cannot afford to spend thousands of dollars to hire an attorney or law firm to represent them in a child custody, visitation or child support case. The good news is that parents have options.

Whether you are a father or a mother, you have rights as a parent. However, all of your father's rights or mother's rights are not automatic. You must assert your rights through the court system to protect your parental rights.

One excellent, affordable option is to have a qualified, legal document preparation firm prepare the paperwork for you, and you can represent yourself. The great news is that child custody, child visitation and child support cases are decided predominantly on the documents filed with the court, because the courts don't have time to have long, drawn-out hearings or trials.

By having the documents professionally prepared, you ensure that you have the right information, on the correct forms, in the proper format that the judges expect to see from the best attorneys. Even better, you do so at a small fraction of the cost.

Stay tuned for our next article which will provide tips on how to represent yourself in court to increase your likelihood for success. For immediate information on parent's rights and helpful tips, please CLICK HERE!