Children should - and do - take precedence in any dissolution case. When custody is involved, other issues generally take a backseat until the parties can figure out how their kids are going to be cared for. In my opinion, judges often take a similar approach.
While each case is different, there are a few constants: parents want their children to be healthy and happy, and they generally want to have as much parenting time as possible. In some cases, issues of custody and visitation quickly and easily resolve. The parties discuss and implement a parenting plan, and they decide to work together to restructure their family dynamic in a way that makes sense. In others, issues of time-share and decision-making present thorny issues that require court intervention.
In considering custody of your children, there are two important concepts to embrace. Legal custody and physical custody require independent analysis.
Legal custody deals with decision-making. It is far more typical for parents to share joint legal custody of their children, which means they agree to make major decisions jointly on behalf of the kids. Major decisions generally include those dealing with education, medical treatment, religion, and the children’s overall welfare. Be sure to contrast “major” decisions with more incidental day-to-day decisions (i.e., bedtime, meal choice, etc.). Day-to-day decisions are usually made by the parent exercising their custody time, and those decisions do not generally require advance consultation and agreement. Major decisions require advance discussion and agreement.
Physical custody deals with parenting time. Parenting time is a very general concept, and people share physical custody of their children in a variety of ways. There is no set schedule that a court will automatically implement, and this gives parents a lot of discretion in negotiating an access schedule that blends their family’s needs with the needs of the children.
When parties agree as to custody, that agreement can be memorialized and submitted to the court. Once the court approves the agreement, the parenting schedule becomes a binding court order. It can continuously be modified by either party if there has been a substantial change of circumstance (i.e., a parent moves, a child changes schools, etc.). It is not uncommon for parties to make alterations to the custody schedule after their case concludes, as facts and circumstances always change. These agreements or adjustments to the schedule should always be memorialized and submitted to the court.
If parties to a dissolution action cannot agree as to custody, the analysis becomes more difficult. The court generally looks for input from a third party before it will render a decision as to custody. Mediation in contested custody cases is always required in Orange County, and is offered as a free service to litigants. If mediation fails, the court can appoint an evaluator to meet with members of the family and render an opinion as to custody. This can be a very costly and time-consuming process, but the approved evaluators in the County do a spectacular job. The court has a list of approved evaluators available on its website.
Though not every case can be resolved short of trial, settlement on custody issues is quite common. No one generally likes the idea of a court making a decision as to family structure and parenting time, but the court will certainly make a decision when pressed. The court’s focus is always on the best interests of the children, and in most cases, that focus is shared by the parents.
Contact Jennifer Owens for a free consultation to discuss your family law matter.