Many things come into play during a separation or divorce: Who gets the house? What about our collective assets or debts? What about support? All of those things are important, but one thing that the parents of children in a divorce generally agree on is that the children’s well-being is not just important, it’s CRITICAL. What defines what is in the child’s best interest? Contact an experienced Santa Rosa Child Custody & Visitation Attorney at Vandyk Law today for compassionate guidance on custody and visitation issues.
Best Interest of the Child (BIC)
“It’s all about the kids.” Problems arise when there is no agreement in place. Some parents think that in an uncontested divorce, it is not necessary to have a formal agreement regarding who has the kids and when. After all, “If it isn’t broke, why fix it?”. However, it is impossible to anticipate what your needs might be six months or a year from now. We believe it is in the best interest of all involved when a formal, regular child sharing schedule is reached. This allows both parents and child to have a schedule they can rely upon thereby relieving the anxiety of the unknown. Once the agreement has been reached, it will be signed by both parties and submitted to the court for judicial approval. If approved, the judge will sign the agreement making it an official order of the court. A child support order sets the “status quo” regarding visitation, reducing the need to go back to court and spend money on unnecessary litigation.
Our Santa Rosa Child Custody & Visitation Attorney can help you negotiate a child sharing schedule/agreement that encompasses many details that you may not be thinking about right now such as holidays, vacations, extracurricular responsibilities, long-distance travel out of state or country, as well as places of exchange.
In a perfect world, everyone would be able to achieve a custody and child sharing schedule outside of court but we know that sometimes this is not possible. In a contested divorce, if you and your spouse cannot agree on a plan, it’s time to go to court. The first thing the court will look at is what is in the best interest of the child aka BIC.
Many factors are considered when the court decides what is in the best interest of the child but here are the most common denominators:
- Wishes of the child (If old enough to provide preference.);
- Mental & physical health of the parents;
- Religious beliefs and upbringing;
- Continuation of stable home environment;
- Encouragement and support for interaction between child and extended family of both parents;
- Relationship and interaction with other members of the household;
- Adjustment to child’s school and community;
- Age and sex of child;
- Parental use of excessive discipline or emotional abuse;
- Parental use of drugs, alcohol, or sexual abuse.
- “The court automatically gives custody to the mom.”
- “We were never married so I have no parental rights.”
- “I do not hold the same religious beliefs as my spouse so I doubt the court will grant me joint legal custody.
- “I have a physical disability that makes it difficult for me to parent the same as my spouse; therefore I do not have the same right to custody and visitation as my spouse.”
The court does not automatically give custody to one parent or the other. Courts cannot deny your right to custody or visitation because you were never married or because you or the other parent has a physical disability or a different lifestyle, religious belief, or sexual orientation.
Keep in mind that any decision you make should be done with your child’s best interest in mind. If you have to go to court, the court will use the above standard in deciding to grant or deny your request. Let us, at Vandyk Law, help you navigate this emotionally charged issue. Don’t wait, call us today for a free consultation at (707) 528-1100.
JOINT LEGAL CUSTODY V. JOINT PHYSICAL CUSTODY EXPLAINED
Joint physical custody means the child will live with both parents and parents will share “significant periods” of custodial time in a manner that assures the children will have “frequent and continuing contact” with each parent. However, it does not mean the child must split their time equally between each parent. It is not uncommon for the child(ren) to spend more time with one parent than the other. The parent with whom the child spends more than half the time with is considered the “Primary Custodial Parent.”
Joint Legal Custody means that both parents share the right and responsibility to make the important decisions about the health, education, and welfare of the children. Parents who share legal custody, both have the right to make decisions about a variety of issues including:
- School or child care
- Religious activities or institutions
- Psychiatric, psychological, or other mental health counseling or therapy needs
- Doctor, dentist, orthodontist, or other health professionals (except in emergency situations)
- Sports, summer camp, vacation, or extracurricular activities
- Residence (where the children will live)
Technically, neither parent has to get the “permission” of the other before making these decisions, but we highly recommend that you do! Cooperation is key to successfully co-parenting after divorce! Getting the other parent’s input, instead of unilaterally making the decision yourself, will save you much aggravation and possible litigation costs if the other side takes you back to court.
STEPS TO A CUSTODY & VISITATION HEARING
My Spouse and I Can’t Seem to Come to an Agreement, What Do We Do?
Whether you need an initial custody or visitation order or you need to modify the existing one, there are certain steps everyone must take before they get to the judge. *Please keep in mind that each person’s matter is uniquely different and as such there may be variations in the process that are not indicated below.
STEP 1: File a Request for Order (RFO) to establish or modify custody/visitation.
When you file the RFO, you will attach your custody and or visitation wishes. The other party will have a chance to respond with their custody and or visitation preferences or simply agree.
STEP 2: Attend your Family Court Services Mediation Date. You will speak with a Child Custody Recommending Counselor. The purpose of this meeting is to work with a skilled professional to develop a mutually beneficial parenting plan that is in the best interest of the child while gathering input from both parents. A recommendation by the counselor will be forwarded to the judge assigned to your case. You will receive a copy of the report by email, or by mail if an email address is not provided, prior to the hearing. or a partial agreement, during your session, the counselor will submit the agreement to the court, and it will be made an order.
STEP 3: Attend your Court Hearing. The judge will take into consideration the FCS recommendation and hear testimony from both parties before making an order.
What Should I Know Before My Family Court Services (FCS) Date?
- Attendance is mandatory,
- Allow yourself time and don’t be late! If you miss your appointment, another will not be scheduled before your hearing, and the judge will look down upon this,
- FCS session can last up to two hours,
- Bring your intake with you and make sure that it is completed prior to the session,
- Local rules do not allow the counselors to communicate with the parties or their attorney,
- Do not bring your children to the interview,
- If you are a victim of domestic violence, you have the right to a separate counseling session and you may bring a support person for emotional support,
- Only custody and visitation issues will be discussed,
- Any documents that you want the counselor to review must be filed with the court prior to your FCS session,
- Only documents that show compliance with a previous order may be shown at your FCS session,
- Counselors will not recommend “move away “orders,
- Counselors will not recommend what school child should attend,
- Counselors may recommend supervised visitation if there are substance abuse issues, mental health issues or child abuse.
It is essential that you are prepared before you attend your FCS meeting. Vandyk Law will prepare and guide you through this very important step in the custody and visitation process. Call Vandyk Law today at (707) 528-1100.
I Was Never Married to the Mother of My Child; Do I have a Right to Custody and Visitation?
If you were not married to the mother of your child and your name is not on your child’s birth certificate you may want to start a paternity action to establish a legal father-child relationship. This is important because it protects your rights as a parent and makes it possible for you to obtain custody and visitation. Until paternity is established, an unmarried father has no legal right to his child.
Can I Test the Paternity of My Child Without the Mother’s Knowledge or Consent? How Do I Establish Paternity?
You may legally establish paternity by court order or by voluntarily signing a Declaration of Paternity. This form can be obtained through the Department of Child Support Services. To be binding, it needs to be correctly filled out and signed in front of a notary public. If the Mother will not sign a Declaration of Paternity you will have to ask the court to order genetic testing.
Can I Get Child Support if I Do Not Know Who the Father Is?
No, paternity must be established to obtain any orders relating to the child.
Establishing parentage is critical for both the mother and father but also to the child. When a child knows who his or her biological parents are:
- Strengthens their self-identity,
- Establishes rights to benefits for the child such as inheritance,
- Rights to life insurance, health benefits, etc.
- Establishes a medical history that would otherwise be unknown.
The issue of paternity is complex, and the courts take parents’ rights seriously. If you need to establish paternity, please call a Santa Rosa Child Custody & Visitation Attorney today for a complimentary consultation at (707) 528-1100.
EVALUATION IN DIVORCE-WHAT IS IT?
730 Evaluations may be used anytime where expert evidence is required, such as business valuations, tracing separate and community property and physical and legal custody disputes.
“When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required.”
“Courts order child custody evaluations, investigations, and assessments to assist them in determining the health, safety, welfare, and best interest of children with regard to disputed custody and visitation issues….”
730 Evaluation in Custodial Proceeding
In high conflict cases, sometimes professional intervention is needed to assist the court in determining what is in the best interest of the child. This is called a 730 Evaluation or Child Custody Evaluation. Often the judge will order it but it can also be stipulated to by the parties. When each party feels confident that they are the better custodial fit for the child(ren) they have the option of requesting a 730 evaluation by attaching their written agreement to a Judicial form FL-327.
In other cases, the Judge will order it and appoint an expert in the field, often a psychologist, clinical social worker or family therapist to investigate and interview both parents and then report back to the judge. Some issues that may need a professional evaluator are:
- Child or substance abuse;
- Custody dispute;
- Sexual abuse;
- Allegations of mental illness;
- Special needs children;
The court-appointed evaluator will provide an expert, unbiased opinion to the court. There are strict requirements governing the qualifications of a 730 evaluator, see California Rules of Court 5.225 and Family Code section 3110.5(c)(1)-(5) for a complete list.
The evaluation may include the following:
- Visits to both parents home;
- Psychological testing of both parents and children;
- Interviews with both parents, siblings, step-siblings, family therapists, significant others, teachers, and physicians.
730 Evaluations generally take several months to complete and can be quite pricey, upwards of $10,000 or more. A judge may order one party to pay all of it or assign a percentage of the fee to both parties. There are alternatives to the 730 eval such as private mediation.
Call Santa Rosa Child Custody & Visitations Lawyers at Vandyk Law Today!
A parenting agreement that works for both partners in regards to child custody and visitations can sometimes be difficult. If you are recently separated and need legal help, a Santa Rosa Child Custody Attorney can help you. Contact us today at (707) 528-1100 for a consultation. They have your best interest at heart and can help you battle these rather stressful custody cases.