Child Custody FAQs

In most cases, the people who are most qualified to determine what happens to your children when you and the other parent separate or divorce, are you and the other parent.  The best solution for the children is for the parents to reach a child custody agreement (also called a parenting plan) about who will take care of them. If you and the other parent agree on a parenting plan, your parenting plan can become a child custody court order; in most cases, a judge will approve a child custody plan agreed upon by both parents.

 

You and the other parent are both responsible for supporting your children if they are under age 18.  The amount of support to be paid by one parent to the other is based on established Caifornia guidelines and is usually calculated using a computer program called Dissomaster™.  Significant factors that go into the calculations include each parent’s income and the amount of (percentage of) custodial time each parent spends with the children.

 

If you and the other parent are able to come to an agreement regarding your parenting plan, good for you!  If you cannot come to an agreement regarding child custody, don't worry, you are not alone and it is certainly not unusual.  The Law Offices of Tobie B. Waxman is here to help you.  Issues surrounding children -- child custody and support in particular -- can be some of the most contentious and emotional elements in a divorce or separation.

 

What happens if we cannot agree on child custody?

If you and the other parent are unable to agree on child custody or visitation, you can attend mediation, you can work with a family law attorney who can negotiate with the other parent's attorney to come up with a parenting plan, or a judge will make the decision for you. There are several steps to finalizing a child custody plan.  In the meantime, child custody and visitation can be decided on a temporary basis if there are immediate needs or problems. For example, a new school year may be approaching and you cannot agree on a school for your children. Or, one parent intends to move and wants to take the children along. (Keep in mind that you may not be able to prevent such a move unless you typically spend a lot of time with your children.)

 

Before any hearing or trial involving child custody or visitation, both parents are required to meet with a trained counselor hired by the court. The counselor will try to help you agree on child custody and a parenting plan. These sessions are arranged through Conciliation Court or Family Court Services, and are held in private offices located in the courthouse. In Los Angeles County, these sessions are entirely confidential and the counselor only reports agreements reached by the parents.  This service is offered to you free of charge.

 

Depending on the nature of the child custody dispute, the judge may order a psychological evaluation of the family as well, and may appoint an attorney to represent the children. If a psychological evaluation is ordered or an attorney is appointed for your child, you and the other parent may be required to bear all or part of the cost.

 

What choices does the judge have in granting child custody or visitation rights?

The judge may give child custody to one or both parents, or, in some cases, to another adult based on the best interests of the child. Considerations include the child's health, safety and welfare, as well as any history of abuse by one parent. For child custody to be awarded to someone other than a parent, however, the judge would have to believe that giving child custody to either parent would be detrimental or harmful to the children.

 

• Joint legal custody. The parents share the right and responsibility to make important decisions about their children's health, education and welfare. Such decisions might include, for example, where the children will attend school or whether they should get braces on their teeth.

• Sole legal custody. One parent has the right to make decisions related to the health, education and welfare of the children.

• Joint physical custody. The children spend time living with each parent on a regular basis. This does not mean, however, that the children must spend equal amounts of time with each parent.

• Sole physical custody. The child lives with one parent and the other parent has visitation.

 

Keep in mind that the actual time spent with your children may be more important than the legal terms used to describe the arrangement. Also, the specifics of such child custody orders can vary. For example, a judge who orders joint legal and physical custody may name one parent as the primary caretaker and one home as the primary residence. Or, a judge might order sole physical custody to one parent and supervised or no visitation to the other if it appears that a parent may present a threat to the child’s welfare or safety.

 

Your child custody plan can be changed if it doesn't work.  If your circumstances change, you can return to court and request a change in the child custody arrangement (aka parenting plan) even if a temporary or permanent child custody order has already been established. Or, if you and the other parent can reach an agreement regarding child custody, you may submit it to the judge and ask for a court order. Judges often approve changes in child custody plans even without a hearing if you both request them.

 

Will the judge consider our children's wishes?

It depends. The judge must consider what the child wants if the child is “of sufficient age and capacity to reason.” Children age 14 and older are also entitled, if they desire, to express an opinion about child custody issues to the court. In either case, however, the judge is not required to follow the child’s wishes. The judge will make child custody orders that are in the children's best interests which may or may not be what the child wishes. Avoid trying to persuade your child to choose you over the other parent; this puts a tremendous emotional strain on your child.