San Diego Child Custody Attorney
Legal Custody vs. Physical Custody
- Legal custody: Ability to make decisions regarding the child’s health, safety, welfare and education.
- Physical custody: Where the child resides. One parent usually has the primary residence and the other parent has “visitation” or “custodial time.”
For more information on child custody, click here.
Factors Considered By the Court
Both parents are equally entitled to custody of a child. The Court may determine that one parent should have more time with the child than the other parent. However, the Court does not favor one parent over the other.
When the Court is making an initial child custody determination, they consider the following:
- The health, safety, and welfare of the child.
- Any history of abuse by one parent.
- The nature and amount of contact with both parents.
- Illegal use of controlled substances, alcohol and/or prescription medication.
Some issues may require the Court’s immediate attention. If so you can direct the court to your immediate needs. For example, a visitation plan will help if the parents do not live together. Additionally, one spouse may need immediate financial assistance while the divorce is pending. Boros Law Firm, APC can assist you with your immediate needs.
Typical Visitation Schedule
Visitation schedules can vary based on a variety of different factors:
- Child’s school schedule.
- Parent’s work schedule.
- Age of child.
- Location of parents’ residences.
Typically, younger children should not be away from either parent for more than a few days. Thus, a 2-2-3 schedule may work best. This means 2 days with you, 2 days with the other parent, 3 days with you, 2 days with the other parent, and so on. Older children may respond better to an alternate week schedule.
Mediation is required for all child custody and visitation requests submitted to the Court. Once a motion is filed, the Court will give two dates. The first date is for mediation. The second date is for the court hearing. In San Diego, mediation is very important because the mediator will submit a report to the Court and both parties. The Court relies heavily on this recommendation. Thus, it is important that the mediator understands your position. They can then make an informed recommendation based on information provided by you.
We prepare all of our clients for mediation. This ensures that you understand the process and walk into mediation prepared. Don’t wait until after mediation to hire an attorney. Contact an experienced child custody attorney now.
Move Away Requests
Written permission from the other party or a court order is required to move out of state with children. To obtain a court order, one must file a Request for Order (motion) asking for a move away order. The court takes these types of requests very seriously. This is because a move away order may severely limiting one parent’s ability to see the children on a regular basis. The Court considers all of the following factors:
- Stability and continuity of the minor child;
- Distance of the move;
- Age of the child;
- Child’s relationship with parents;
- Relationship between parents;
- Parents’ willingness to put best interests of child above his/her own;
- Child’s wishes;
- Reasons for proposed move; and
- Extent parents are currently sharing custody.
Child Custody Restrictions
The Summons includes Automatic Temporary Restraining Orders (aka ATROs). The ATROs apply to the Petitioner when they file the Petition. They apply to the Respondent when they are personally served with the Petition. One of the ATROs prohibits a party from removing minor children from the state of California. To leave the state, they must have a court order or written permission from the other parent. A planned vacation out of state may be viewed differently than relocating the minor children from the state. Contact Boros Law Firm, APC today to discuss the specific facts of your case.
Impact of Domestic Violence
If a parent has committed domestic violence against the other parent or the child within the last 5 years, this may effect child custody. In that case, the court presumes that an award of sole or joint legal custody is not appropriate. They also presume that an award of physical custody to the abusive parent is not appropriate. The party who committed domestic violence must overcome this presumption by a preponderance of the evidence.
When determining if the presumption can be overcome, the Court will consider the following:
- Completion of the batterer’s treatment program.
- Status of drug or alcohol abuse treatment (if applicable).
- Completion of a parenting class.
- Compliance with probation or parole.
- Violations of the domestic violence restraining order.
- Further acts of domestic violence.
Professional Visitation Supervisor
Supervised visitation may be required if there is domestic violence, child abuse, or neglect. Hopefully, the parents can reach an agreement on a neutral third party to supervise the visits (i.e. mutual friend, family member, etc.). If not, a professional supervisor may be necessary. The court has compiled a list of visitation monitors which can be found here.
Typically, the court will order both parents to take a parenting class. They may also require the class cover high-conflict parenting issues and/or co-parenting issues. Click here for a list of approved classes.
Modification of Schedule
Modification of a child custody or visitation order depends on the status of your case. Certain requirements are necessary if you are trying to modify an order after a judgment. The court will check if you have met the requirements. If not, the court may not even consider the request. Contact an experienced child custody attorney today to assess what information is needed for your case.