Posted By Kevin L. Cadora, Esq.
Nowhere else in family law is an issue more important than child custody and visitation. It does not matter how much money the parties have or how many properties or overseas timeshares a spouse owns; when it comes to children, no other issue can compare since custody deals with people, which can never be replaced, and money and property are always replaceable. The reason custody and visitation is such an important issue in family law is based upon two primary principals. First, when dealing with children, emotions run high so custody and visitation are extremely important to both the parties and the judge because the custody plan will impact the children as well as the parents. Second, custody of children has a direct correlation to the parents’ constitutionally protected property rights in the form of child support. The emotional and psychological impact of child custody litigation coupled with the financial impact of child support makes custody and visitation one of the most important issues in any family law proceeding. Before further discussing custody and visitation, however, it is important to differentiate between custody and visitation because the terms are NOT synonymous.
First, custody is divided into physical custody, which is defined as either sole to one parent or jointly to both parents and legal custody, which is a parent’s right and responsibility to make decisions regarding the children’s health, education and welfare. Custody litigation is often required when parents cannot agree on (1) where the children will live, (2) where the children will attend school or (3) non-emergency medical treatment for the children. Custody litigation is also prevalent when one parent seeks to relocate the children out of California. Custody is initially determined based upon the children’s best interest and if a parent wishes to modify a permanent custody order, the parent must also show a change in circumstances warranting a change in custody that would be in the children’s best interest.
Next, visitation is the time a non-custodial parent has with the children, which is also decided based upon the children’s best interest. Visitation can be unsupervised, supervised and even therapeutic depending on the needs of the children and the parents. The court also has the ability to order supervised exchanges of the children in the event there is enormous conflict between the parties. Regardless, the court must balance the parents’ rights to frequent and continuous contact with their children against what is in the children’s best interest.
Factors the court considers when ordering custody and visitation include but are not limited to (1) a parent’s habitual and continuous use of drugs/alcohol, (2) domestic violence perpetrated by a parent, (3) the special needs of the children, (4) the parent’s living conditions, (4) the distance between the parents and extended family, (5) the parent’s work schedules, (6) the children’s activities and (7) the children’s behavior and academic performance.
Finally, it is extremely important to remember that child support is based upon a parent’s time with the children. The more time a parent has with the children, the less their child support obligation will be to the other parent and vice versa. Granted, there are several other factors that go into the calculation of child support but the non-custodial parent’s timeshare or percentage with the children is critical to the calculation of child support.