Physical Custody vs. Legal Custody
There are two types of child custody in San Diego Divorce and Paternity cases: legal and physical custody. A family court making orders for child custody will make orders for both legal and physical custody.
Legal custody orders of children in family law cases addresses decision making power. The party with legal custody has the legal power to make decisions regarding the health, schooling, and general welfare of the children. Generally, unless there is good reason otherwise, parents share joint legal custody of minor children.
Physical custody orders of children in family law cases addresses the physical location of the children and orders specific scheduling for co-parenting. There are two scenarios for physical child custody orders: true joint physical custody of 50-50 custody, and primary custody to one parent (custodial parent) and the right of visitation to the other (non-custodial parent).
Family Court Services Mediation
Anytime an order for child custody or visitation is requested, the San Diego Family Court’s Local Rules require that the parents of the children attend Family Court Services Mediation (FCS).
At the FCS appointment, the parents may present information concerning the custody of the children to a court appointed mediator. The parents may also present relevant documentary evidence including affidavits from friends and family.
The FCS mediator will issue an FCS Report and Recommendation to both parents and to the family court judge. The recommendation takes into consideration all information obtained by the mediator during the interview with the parents, review of the file, and contact with other third parties and includes a recommended parenting plan.
Each parent is entitled to have 10 calendar days from receipt of the recommendation to review and respond the the information included inthe report. The family court will grant a continuance of the hearing upon the request of ether parent if the FCS report has not been recieved with the ten day time period.
Success at FCS mediation is crucial to the success of your child custody case as family court judges place a great deal of weight of the FCS mediator’s recommendation.
At Griffith, Young & Lass, we prepare our family law clients to succeed at FCS mediation and do everything possible to obtain a favorable result.
Parents going through a divorce or unmarried parents looking to separate are faced with the often difficult task of developing a co-parenting relationship that works best for the children involved. The parents must work around work and school schedules to come up with a child custody schedule that works. The overarching consideration must always be the best interests of the children.
The best co-parenting plans and child custody arrangments are those that ensure access to both parents on a regular basis. True shared parenting arrangements generally involve the parents alternating weekends and dividing weekdays in varying schedules.
In any case, it is always best for the parents to work together in being flexible with one another regarding the children’s schedule. The last thing that you want is a judge dictating your schedule with your children. However, unfortunately sometimes there is no other choice.
Private Custody Evaluation
Occasionally, in complex child custody cases, high conflict child custody cases, and cases wherein there are allegations of drug abuse, alcohol abuse, domestic violence, or mental illness, one parent may seek the intervention of a psychologist or psychiatirist specialized in addressing these issues as they relate to child custody and visitation.
The party seeking the private custody evaluation does so in lieu of FCS mediation and, absent an agreement from the other parent, that party must request that the court order the private evaluation.
The private custody evaluator conducts what is called an Evidence Code “730 Evaluation.” This evaluation is given to the court after the evaluator has met with both parents, the children and other third parties involved with the family This evaluation is considered to be admissible evidence at the eventual child custody hearing and holds a great deal of weight with the family court judge.
Private child custody evaluations are very expensive, but are often well worth the extra money in certain circumstances.
Child Custody Modification
Generally and with few exceptions, once a child custody order is made, in order to request a modification to the order the requesting party has the burden to prove that there has been a change in the circumstances of the parents or children that would warrant a change to the court order for child custody. This standard comes form the case of Montenegro v. Diaz (2001) 26 Cal. 4th 249.
The change in circumstances could be a change of schedule, a change of location of one or both of the parents, or any number of significant changes effecting either parents’ ability to adhere to the old custody order availability to spend more time with the children.
In order to move forward with a modification, absent an agreement from the other parent, the requesting party must move the court to initiate a Family Court Services Mediation appointment and court hearing on the issue of child custody modification.
Emergency Child Custody Orders
Generally, a family court judge will not issue custody orders on an emergency basis unless there is evidence provided that the minor child face a threat of mmediate harm or the threat of being removed from the State of California without the express consent of the other parent.
If a threat legitimately exists, it is imperative that you act fast. Contact Griffith, Young & Lass now if this is the case and we can appear on your behalf in family court within 48 hours to request emergency child custody orders. 888-852-6469.
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