Child custody and visitation in a California divorce

Legal custody is the right and responsibility to make important decisions about a child's health, education and welfare. With joint legal custody, both parents share those decisions. With sole legal custody, one parent makes them. Physical custody describes where the child regularly lives. Joint physical custody means the child spends significant time living with each parent, though the time does not have to be split equally. Sole or primary physical custody means the child lives mostly with one parent and the other parent has visitation.

Visitation orders can follow a detailed schedule, provide for reasonable visitation that the parents work out between themselves, require supervision when there are safety concerns, or, in rare cases, provide for no visitation when contact would harm the child.

Family Code section 3020 states that the health, safety and welfare of children is the court's primary concern, and that it is state policy to ensure frequent and continuing contact with both parents when that is in the child's best interest. When those goals conflict, the child's health, safety and welfare come first.

Section 3011 lists factors the court must consider, and judges may consider other relevant circumstances as well.

When parents agree, they can write their arrangements into a parenting plan and submit it as a stipulation or as part of the judgment. Custody and visitation orders are commonly written on the Child Custody and Visitation (Parenting Time) Order Attachment, form FL-341. Optional attachments cover specific topics: FL-341(A) for supervised visitation, FL-341(B) for child abduction prevention, FL-341(C) for a holiday schedule, FL-341(D) for additional physical custody provisions, and FL-341(E) for joint legal custody details.

A useful plan is specific about weekday and weekend schedules, exchanges, holidays, school breaks, travel, communication and how future disagreements will be handled. Vague plans tend to produce more conflict later.

Under Family Code section 3170, when custody or visitation is contested, the court sets the matter for mediation through its family court services office before the hearing. Depending on the county, this may be confidential mediation, or child custody recommending counseling, in which the counselor may give the judge a recommendation if the parents do not agree. Ask your court which model it uses, because it affects how you prepare.

If you have safety concerns, tell family court services right away. Courts can arrange separate sessions or other accommodations.

Family Code section 3044 creates a rebuttable presumption that giving sole or joint legal or physical custody to a parent who has committed domestic violence against the other parent, the child or certain others within the previous five years is detrimental to the child. The presumption can be overcome only under the conditions the statute sets out. These cases are fact-specific and high-stakes, so anyone affected should speak with an attorney and, where needed, a domestic violence advocate.