Child Custody

Parents who separate should have a custody and visitation or parenting plan for deciding how they will share parenting responsibilities. A custody and visitation plan must be in writing and signed by both parties and a judge to be enforceable.

Developing A Plan

While it is difficult to make generalizations about the suitability of various parenting plans many experts agree that during the first years of life, it is important for young children to develop an attachment to a primary caretaker and recommend frequent but non-overnight visitation with the non-custodial parent for short periods of time. As the children grow older and are better able to develop multiple attachments longer periods of continuous overnight visitation is encouraged.

What Is A Parenting Plan?

A parenting plan, also called a "custody and visitation agreement", is the parents' written agreement about:

  • Time: a schedule for when the children will be with each parent
  • Decision-making: How the parent will make decisions about the health, Education and welfare of the child

With a written plan, the parents and your children will know what to expect and will have fewer conflicts in your shared parenting time.

Your parenting plan becomes a court order after it is signed by both parents, signed by the judge, and filed with the court.

Can We Make Our Own Parenting Plan?

Yes. You have a right to make a parenting plan agreement on your own. This agreement may be called a stipulation, time-share plan, or parenting plan.

If both parties can agree on a parenting plan, the judge will probably approve it. The agreement becomes a court order after it is signed by both parties, signed by the judge, and filed with the court.

Consider The Practical Aspects Of Any Plan

A first step in developing a plan is charting out the schedules of the children and both parents. This will help you make realistic choices based upon practical considerations. Take a calendar and chart out in a colored pen the activities of each of your children (e.g. when they leave and return from school/day care each day, when they go to different activities such as music lessons, when they have vacations etc.) Next, take a different colored pen and chart your activities and commitments. Include when you go to and return from work, go to meetings, go out with friends etc. With another colored pen do the same for the other parent. You should then compare both parents' plans to see if there is any common ground.

The Children's Best Interests

When parents decide custody and visitation they should develop a plan around the needs and best interests of their children and not their needs. In other words, they should adjust the plan to the children, not the children to the plan. Parents should be looking at their children's need for love, emotional support and security. Parents should take into account their children's age, personality and experiences. Children will generally be better off when both parents are involved and participating in their upbringing.

Next you should consider who has historically been responsible for different commitments with the children and which parent is practically able to fulfill them in the future. QuestionsYou should consider are:

  • Who the children turn to when they have a problem or need to share their feeling?
  • Who does homework with the children?
  • What do the children do on the weekends?
  • Do the children spend time with relatives and who takes them?
  • Who takes the children to medical appointments or picks them up when they are sick?
  • Who provides the children's physical care, such as bathing, changing diapers, arranging for sitters, haircuts, feedings?
  • How do you and your spouse discipline the children and set structure for them?
  • What kind of personal attention do each of you give to the children, such as teaching problem solving, reading , playing together, sharing activities.
  • Who is responsible for the children's social activities, such as arranging birthdays play dates, trick or treating, taking class trips, games, lessons, school plays etc.?

Joint Custody

For older children one of the key issues is whether a joint custody is more appropriate than an arrangement where the non-custodial parent has alternate weekends and one or two overnights during the week. The answer will be different for each family. The parent's relationship and their level of cooperation and also the children's preferences can be as important as how much time the children physically spend with each parent. The Family Code provides that any parental plan must encourage frequent and continuing contact although it does not specify a particular plan.

The Legal Aspects Of A Plan

Any parenting plan will have to make provision for who gets "legal" custody and who gets "physical" custody of the children. These are the terms that are used in agreements.

Legal custody means which parent gets to make important decisions about the children's education, religious upbringing, medical treatment and other legal decisions. If one parent gets to make these decisions they have "sole legal custody." If both parents get to make those decisions together, they have "joint legal custody." It is rare for one parent to be granted sole legal custody unless there are issues of domestic violence and substance abuse or there is a history of the parents being unable to communicate. In deciding on issues relating to legal custody, form "Joint Legal Custody Attachment" FL-321 (E) which has been approved by the Judicial Council of California is helpful.

Physical custody means who the children live with on a daily basis. A parent has "sole" physical custody if the primary residence of the child is with that parent. The non-custodial parent then has visitation rights. The parents have "joint" physical custody if the children live with each parent for significant periods of time during the week.

A custody and visitation plan should be consistent and detailed. It should spell out who gets the children when and where in enough detail so that it is easy to understand and enforce. Important questions are who has the children in the week and on the weekends? Who transports the children for exchanges and to activities? Who gets the children on holidays and vacations? In California, the Judicial Counsel has developed forms to be used when requesting custody and visitation. The forms "child custody"Visitation Attachment FL-311 and "Children's Holiday Schedule Attachment" can be found at www.courtinfo.ca.gov/forms and are helpful in developing plans.

Sample Physical Custody Plans

Some states have developed model parenting plans that take into account what is appropriate for children of different ages and stages of development. The Oregon Judicial Department and the Supreme Court for the State of Arizona have both developed model parenting plans for Parents that suggest different parenting plan options.

The following samples are based on those parenting plans.

Birth To 12 Months—Two Evenings A Week And Saturdays

Sample Language:

Commencing on _________, Parent A shall have physical custody of the minor child(ren) each week on Tuesday and Thursday from 4:30 p.m. to 7:30 pm. and Saturday from 10:00 a.m. to 6:00 p.m. Parent A shall be responsible for picking up and dropping of the minor child(ren) at the residence of Parent B. Parent B shall have physical custody of the minor child(ren) at all other times not designated as Parent A's time.

Comments:

At this young age, infants form a primary attachment to one parent and long periods of absence from the primary attachment figure may be traumatic. Parents should minimize the infant's basic sleep, feeding and waking cycles.

Pre-schooler 3–5 Years

The parties alternate weekends and the non-custodial parent has one or more overnights during the week.

Sample Language:

  1. Commencing on ___________, Parent A shall have physical custody of the minor child(ren) alternate weekends from Friday, after the end of school/child care/camp (or at 5:30 p.m. if the child(ren) are not in school/child care/camp), when Parent A shall pick up the child(ren) from school/child care/camps, or at Parent B's residence if the child(ren) are not in school/child care, until Monday, at the start of school/child care (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B's residence if the child(ren) are not in school/child care/camp.
  2. Commencing on ____________, Parent A shall have physical custody of the minor child(ren) each week from Wednesday, after the end of school/child care camp (or at 5:30 p.m. if the child(ren) are not in school/child care/camp), when Parent A shall pick up the child(ren) from school/child care/camp, or at Parent B's residence if the child(ren) are not in school/child care/camp, until Thursday, at the start of school/child care/camp(or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B's residence if the child(ren) are not in school/child care/camp.
  3. Parent B shall have physical custody of the minor child(ren) at all other times not designated as Parent A's time.

* Instead of referring to alternate weekends, a plan can refer to 1st, 3rd and 5th weekends of the month. This generally avoids any confusion about which parents has custody on any given weekend.

Comments:

This plan is sometimes referred to a "Freeman" order. It may be suitable where Parent B has not been very involved in the day to day care of the child and has a busy work schedule. Three to five year olds may show increased anxiety moving between parent's homes. This does not necessarily reflect on whether the other parent is not a good parent or does not want to be with the other parent. Depending on the maturity of the child and the practicality of the exchanges these times can be negotiated so that Parent A only has the child one or two evenings in the week and has shorter or longer weekends.

"2:2:3" Joint Physical Custody For Older Children

The parties alternate weekends and each parent has the children two days in the week.

Sample Language:

  1. Commencing on __________, Parent A shall have physical custody of the minor child(ren) each week from Monday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent B shall drop the minor child(ren) off at school/child care/camp, or at Parent A's residence if the child(ren) are not in school/child care/camp, subject to paragraph C below, until Wednesday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B's residence if the child(ren) are not in school/child care/camp.
  2. Commencing on __________, Parent B shall have physical custody of the minor child(ren) each week from Wednesday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the child(ren) off at school/child care/camp or at Parent B's residence if the child(ren) are not in school/child care/camp, until Friday, at the start of school/child care/camp (or at 8:00 a.m. if the children are not in school/child care/camp), when Parent B shall drop the child(ren) off at school/child care/camp or at Parent A's residence if the child(ren) are not in school/child care/camp, subject to paragraph C below.
  3. The parties shall alternate physical custody of the minor child(ren) during the weekends, from Friday, at the start the start of school (or at 8:00 a.m. if the children are not in school), until their return to school on Monday (or at 8:00 a.m. if the children are not in school) when the children shall be returned to their respective school or to the receiving parent's residence, in the event the children are not in school.

Comments:

The child spends no longer than three days/nights away from either parent.

"2:2:5:5" Joint Physical Custody For Older Children

The parties alternate two and five day periods with the children. Each parent has two consecutive midweek overnights each week and alternate the weekends.

Sample Language:

  1. In Week 1, commencing ________, Parent A shall have physical custody of the minor child(ren) each week from Monday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent B shall drop the minor child(ren) off at school/child care/camp, or at Parent A's residence if the child(ren) are not in school/child care/camp, until Wednesday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B's residence if the child(ren) are not in school/child care/camp.
  2. In Week 1 and 2, commencing ________, Parent A shall have physical custody of the minor child (ren) on Friday, after the end of school/child care/camp (or at 5:30 p.m. if the child(ren) are not in school/child care/camp), when Parent A shall pick up the child(ren) from school/child care/camps, or at Parent B's residence if the child(ren) are not in school/child care, until the following Wednesday, at the start of school/child care (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B's residence if the child(ren) are not in school/child care/camp.
  3. After the conclusion of Week 2, the two week rotation shall commence again with the physical custody schedule set forth above for Week 1.
  4. Parent B shall have custody of the children at all times not designated as Parent A's time.

Comments:

The works better for well adjusted children who have a good attachment to both parents. It allows for joint physical custody but each child is only away from the non-custodial parent for five days.

Alternating Weeks—Joint Physical Custody

Sample Language:

Commencing __________, and on alternate weeks thereafter, Parent A shall have physical custody of the minor child(ren) from Monday at the start of school/child care/camp, or from 12:00 noon if the child(ren) are not in school/child care/camp, until Parent A returns the child(ren) to school the following Monday at the commencement of school, or 12:00 noon if the child(ren) is not in school/child care/camp, when Parent A shall return the child(ren) to Parent B's residence. Parent B shall have custody of the child(ren) at all other times.

Comments:

The children may need to have mid-week contact with the non-custodial parent. This schedule can be altered to provide for a mid-week evening or overnight with the non-custodial parent.

Step Up Plans

A frequently encountered problem is that a plan you develop now may not necessarily be appropriate in the future. For example, a plan for young children which permits the non-custodial parent limited overnights may not be appropriate when the children are older. A court may not be willing to change the status quo simply because the children have grown up and are better able to transition between households. One way of dealing with this is to create a "step-up plan" that provides increased periods of custody to the non-custodial parent when the children reach a certain age.

Step-up plans are particularly useful in reaching settlements where there are concerns about the parenting abilities of the non-custodial parent or the psychological harm that moving between two households will have on a child. Step up plans foster a sense of trust, responsibility and reliability as the non-custodial parent and the children familiarize themselves with the new routines and new households.

Step up plans are also useful to encourage parental responsibility where there are substance abuse problems or visitation has to be monitored because a parent has endangered the child. These step up plans should be drafted to allow the non-custodial parent increased time when they have met specific goals e.g. they have remained clean and sober for six months.

Holidays

It is common for parents to alternate holidays each year with one parent having a holiday in even years and the other having it in odd years. Many holidays are celebrated on a Monday and parents elect to extend the previous weekend. However, if you have a parenting plan which provides for switching custody on alternate weekends you will have to decide whether the weekend or the holiday schedule take precedence.

Typical holidays and special days include Mothers/Fathers day, Memorial Day, children's birthdays, July 4th, Labor Day, Halloween, Thanksgiving, Christmas Eve and Day, parent's birthdays and family reunions. Jewish holidays may include Passover, Rosh Hashana and Yom Kippur. In deciding on issues relating to holidays, form "Children's Holiday Schedule " FL-341(C)which has been approved by the Judicial Council of California is helpful. It can be found at www.courtinfo.ca.gov/forms/

During the winter vacation many parents elect to divide the winter vacation. Since the midway point may or may not include Christmas Eve and Christmas Day parents may also elect to split these days.

During the summer recess many parents provide that either parent may have the children for two or three continuous weeks provided that they give each other sufficient notice in advance of their plans. If their plans conflict one parent's choice prevails in odd years and the other parent's choice prevails in even years.

Sample Legal Custody Plans

In deciding on issues relating to legal custody, form "Joint Legal Custody Attachment" FL-341(9) which has been approved by the Judicial Council of California is helpful. It can be found at www.courtinfo.ca.gov/forms/ Where both parents are cooperative and are able to communicate the following joint legal custody language can be used.

Sample Language:

The parties shall have joint legal custody of the child(ren). In exercising joint legal custody, the parties shall make every reasonable effort to foster feelings of affection between themselves and the child(ren). The parties shall cooperate and consult with one another so as to reach mutual agreement on all issues affecting the health, education and welfare of the children, including but not limited to the following:

  1. Enrollment or termination in a particular private or public school/child care/summer camp;
  2. Beginning or ending the regular practice of religion;
  3. Commencement of psychiatric, psychological or other mental health counseling or therapy;
  4. Authorizing the children's drivers' licenses;
  5. Passport applications;
  6. Enrollment in regular extracurricular activities;
  7. Non-emergency medical or dental treatment, other than routine check-ups.

How Do We Modify A Parenting Plan If Circumstances Change?

Once a parenting plan has been signed by a Court, the parties can change the plan by agreement which they then submit to the Court. If they cannot agree a party can request that the Court modify the plan. If the plan is part of a final custody determination that party must prove that a change is in the best interests of the children and they may also have to show that there has been a substantial change of circumstances if the plan gave one parent primary custody.

The Other Parent Wants To Move Out Of State. What Can I Do?

In recent years several Court decisions have set forth the following rules regarding move-aways. If there has been no court order, the Court looks to the best interests of the children.

If there has been a Final Court order and one parent wants to modify that order by moving out of state the legal standard depends on whether the original Court order provides for joint custody. The Courts have not specifically defined what percentage of time-sharing qualifies as joint custody. One Court decided that a plan which gave a father alternate weekend visitation and an overnight every week amounting to 30% custody was not joint custody but "liberal visitation."

If the parents have joint custody, the court looks afresh at the situation and decides what is in the best interests of the child. However, if one parent has primary physical custody (generally more than 60%) it is much harder for the non-custodial parent to prevent the move away. They must prove that the move is being made in bad faith or would be detrimental to the welfare of the child. Only then will the Court review the best interests of the child.

However, the law in this area is far from settled and if you are negotiating a parenting plan you should ask your attorney for advice about what will happen if one parent decides to move away.