Divorce Magazine Podcast: Child Custody and Parenting Time in California
November 13, 2018
In this podcast, Certified Family Law Specialist David Lederman discusses California’s child custody and parenting time, commonly known as visitation, and whether it can weaken parents’ bonds with their children.
Diana Shepherd, Editorial Director, Divorce Magazine
David Lederman, Certified Family Law Specialist
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Read the Transcript of this Podcast Below.
If you’re a divorcing parent, one of your top concerns will be about child custody: how it works, and whether it will weaken your bond with your children. My name is Diana Shepherd, and I’m the Editorial Director of Divorce Magazine and Family Lawyer Magazine. Joining me today is Contra Costa County divorce attorney David M. Lederman, and he’s here to discuss “California Child Custody and Parenting Time,” commonly known as “Visitation.” The National Association of Distinguished Counsel has named him a “Nation’s Top Attorney” every year since 2015 – an honor awarded to less than 1% of practicing attorneys in the United States. David has successfully handled numerous child custody cases involving disputed interstate jurisdictions, as well as Hague Convention international child abduction cases.
Diana Shepherd: David, is there a difference between physical custody and legal custody in California?
David Lederman: Yes there is, Diana. Legal custody, we’re talking about the rights and obligations to make decisions related to a child’s health, safety, wealth, and education, decision making power, parental authority and control. When we’re talking about physical custody, what we’re really talking about is the time that each parent is spending with the child exercising that physical time and control of the child.
How does a divorcing couple decide whether sole custody or joint custody is best for their children?
Well, parents generally know their children far better than the court would, or a judicial officer, and when you’re looking at what this child’s post-divorce life is going to be like, you’re going to look at how it’s been. If you’ve had one parent that was the primary parent and one parent that was largely in absentia, that might be in the child’s best interest to maintain.
It might also be, though, that the parent who has really been letting the other parent exercise that control and parenting might want to take more of a role, and if he or she does, that should be included in the conversation about what type of custody you’re going to have post-separation, what type of timeshare you’re going to have post-separation.
Now, if we’re talking about the difference between physical and legal custody, in general, California courts are going to default, for lack of a better term, to joint legal custody, because really what you’re talking about is exercising that parental authority when the child is with you.
What factors do California courts consider in granting custody: joint, sole, legal, or physical?
When we’re talking about custody, for the purposes of the continuation of this discussion, I’m going to assume we’re talking about physical custody. The court has several factors that they need to look at in making these decisions, but the main focus, what the courts call the sine qua non – the ultimate factor of custody – is what is in the child’s best interest.
To determine what is in a child’s best interest, the courts typically look at health, safety, and history of abuse. There’s a huge legislative framework that defaults against giving a perpetrator of domestic violence significant time with the child. The nature and the contact between the parents and the child, whether there’s a parent who has a history of drug or alcohol abuse, whether or not there’s a detriment to one parent versus the other.
But if all things are equal, if both parents are competent, that is, they both love their child, they both want to spend time and raise the child, and they’re not suffering from drug addiction, and they’re not violent, there’s an institutional bias towards there being a joint parenting plan, joint custody, in part because the studies show that children that have constant frequent contact with both parents generally do better than children that are losing one of their parents.
At the end of the day, from a child’s perspective, they’re composed of part mom and part dad, and to the extent they could have a good relation with both parents generally bodes well for the child.
We’ve often heard the phrase, “the child’s best interest,” or “the best interest of the child.” In California, how does the court determine what is in the child’s best interest – and what does that really mean?
There’s been a legislative and cultural change in the tools used to determine a child’s best interest. The emphasis now, , is on mediation. Any time there’s a child custody hearing set, parties are required to go into family court services in whatever county you’re in to participate in some form of alternative dispute resolution, some form of mediation, to try to work out a plan that’s in the child’s best interest.
Again, the theory being that parents generally do a lot better job of deciding what schedule is in the child’s best interest, than a court does, who really doesn’t know the family, and doesn’t know the child, at least not to the extent that the parents do. So there’s a huge effort to empower the parents with the tools to put together a parenting plan.
If they can’t come to an agreement, then the courts will listen to evidence, and try to weigh the evidence they hear, and make their own determination as to what’s in the child’s best interest. But again, judges are taught at judicial college that constant and frequent contact is in a child’s best interest, and unless there’s a reason not to, if we’re going to have a starting point it’s going to be joint legal and physical custody, and that being an equal time share between the parents along the lines of maybe one parent having two days, the other parent having the next two days during the week, and then alternating weekends, as kind of the starting point.
If the children are going to split their time between their two parents, is it always 50/50?
Not necessarily. As I said, that’s kind of the default if you’re looking at a child custody case. We’ll start with the analogy that the needle starts in the middle, and then the question is, “Really, what is in the child’s best interest?”
Maybe there’s a situation where there’s a distance between the parents, and a 50/50 schedule can’t work no matter how good both parents are. It might be that one parent is better able to facilitate the completion of homework, and the other parent has always been the fun parent, and they want to have more weekend time, but really don’t want to be the workhorse making sure that all the schoolwork gets done.
It might be that as kids age their needs change, and they might not want that workhorse parent who’s making sure they get the work done during the week because, well, if they’ve done their job, the parents have done their job right, the child is now self-motivated to do that, and they don’t need that supervision.
How does a joint custody agreement usually work?
There are a variety of ways, and the reality is, there can be as many joint custody plans as there are creative parenting plans, or creative parents and attorneys.
There are standardized plans. For example, the “Two-Two-Five-Five” schedule: two days with one parent, two days with the other parent, and they alternate weekends so that one parent would have five consecutive days, which would be the three-day weekend and their two days bookend to that weekend. It might be that we go with a different plan, like, for example, “Week on, Week off.” It might be that one parent’s going to have a Wednesday night visit, either a dinner visit or an overnight visit, and the parties alternate weekends. It might be that there is a great distance, and so maybe one weekend, long weekend, a month makes sense for one parent, or a variety of that.
I can’t try to articulate all the possible parenting plans available because, really, there is no limit to what might work for the individual family. It’s got to be focused on what are the needs of the child, and what are the needs of the family – as opposed to taking a fixed schedule and trying to impose it onto a family.
What types of decisions must parents share in a joint legal custody situation?
The decision making is health, safety, welfare, and education. Who are the doctors? Where does a child go to school? What additional needs does a child have? Does a child need a 504 plan? Some type of educational assistance plan? Is there a need for additional help after school?
Religion is another one, although religion is one of those oddball issues where the courts really don’t want to get involved in choosing for the parents what religion the child is going to be; the whole separation of church and the state makes judges particularly queasy about addressing that issue. But it would fall into that penumbra of legal custody: the decision making authority as it relates to the children.
If there’s a lot of conflict between the parents, is joint custody still a possibility?
It’s a possibility, but it might not be the best thing for the child. Parents who are at odds could have what’s called parallel parenting, in which case they really don’t communicate about what’s going on in their respective households. It’s two different islands, and when the child’s with mom their life is one way, and when the child’s with dad, their life is another way.
The problem with that is while it can work, it really does pull the kids apart. It doesn’t give them the consistency and stability that is really best for the children. It’s far better for parents to be able to cooperate and coordinate their parenting so that there’s consistency for the child.
It helps if each parent can look at the other and support that parent’s relationship with the child – because the truth is, one of the factors that a court needs to rely on in making this custody decision is whether or not one parent is better able or suited to support the other parent’s relationship with the child. There’s the high value placed on that.
Are stay-at-home parents more likely to get primary custody than working parents?
Not necessarily. The reality is, many parents have to work, and just because they have to work doesn’t mean that the child should be deprived of access to that parent. It might be that a different creative structure needs to be put in place. It might be that when the dad or mom who’s working isn’t home to care for a young child, maybe the other parent pitches in, maybe there’s a daycare provider, or there’s a family member that will help.
The reality is that both parents have an obligation to support their child to the best of their ability, and the situations where there’s one stay-at-home parent (or a mom, in the traditional sense) are rarely the case anymore.
Again, it depends on the facts and circumstances. If it’s a very young child, maybe they do need to be with their mother. Maybe they’re breastfeeding. But that’s not going to last past the age of two or so, and really, the court’s not looking to penalize a parent for earning a living.
At what age can a child choose which parent he or she wishes to live with?
At 18 or 19. If they’ve graduated high school, 18. The court can listen to a child’s perspective at age 14, or when they’re of sufficient age and maturity to voice their opinion. It can come into evidence in a variety of ways: through a representative of Family Court Services, or a 14-year-old could testify if they really wanted to.
That creates a host of problems, though, and it puts the child in a no-win situation of being caught between two parents that usually they both love, and we try to avoid putting a child in that type of a situation. The impact of that child having to go into a court, look at a judge, and say, “I choose mom,” or “I choose dad,” could have a long-term, devastating effect for that child.
A high-level executive or professional athlete, for example, may travel a lot for their job. What are their chances of getting joint or primary custody?
It depends. What was the world for this child before the separation, before divorce? How will this highfalutin traveling professional manage the child? What’s in the child’s best interest? It’s possible that this is going to be a lifestyle the child would really enjoy. Maybe there are tutors available for the child while he or she is traveling. Maybe accommodations could be made to allow that parent to have a joint custodial schedule. It depends.
It might be the child needs that consistency and stability of having a home base, and that the athlete parent, or frequently traveling parent, needs to be able to work around that child’s needs. The court’s objective in that type of a situation isn’t to coddle the parents, it’s to really focus on what’s going to work out best for the child.
What is the impact of domestic violence on child custody proceedings?
Significant, and it can come up in two potential ways. In one way, if there’s no finding of domestic abuse, but there’s some evidence of abuse – that is, there’s not been a request for a domestic violence restraining order, but there’s evidence that there’s some abuse going on in the household – the court is required to take that into consideration in making a child custody decision.
However, if there’s a finding of domestic violence, and that somebody filed an application for a domestic violence protective order, and that protective order was granted, the perpetrator is, under Family Code Section 3044, unable to have joint or sole custody of the child without meeting certain specific requirements. For example, undergoing a 52-week anger management program, a drug treatment program, a host of things that make it somewhat more difficult for that parent to get to a circumstance where they can have joint or sole custody of a child.
Diana Shepherd: My guest today has been Certified Family Law Specialist David Lederman, who dedicates 100% of his practice to Family Law & Domestic Relations. A current Director for the Association of Certified Family Law Specialists, he is a frequent speaker and writer on family law topics. The team of skilled child custody attorneys at the Law Offices of David M. Lederman will protect your relationship with your children by developing workable custody and time-sharing arrangements that are in your children’s best interests. If you have questions about California child custody and visitation, visit www.ledermanlaw.net.