We understand that dealing with issues related to custody and parenting time are some of the most emotional and stressful issues you will navigate. At Murphy Family Law, you can be assured that we understand the complex and nuanced aspects of custody law, including dealing with move aways, grandparent visitation, and issues related to parental alienation and that we take a compassionate approach to your problems.
In child custody matters, there are three parts to custody – Physical Custody, Legal Custody, and Parenting Time (Visitation) orders. These three separate, but interrelated concepts form any custody order - whether the order is by agreement, or through the court.
When you schedule a consultation with Murphy Family Law to discuss your custody related issues, we will be evaluating the circumstances in your particular situation that are likely to be relevant including (but not limited to):
- An assessment of the current status quo custody arrangement and any current court orders;
- A detailed history of each party's relationship with the child(ren);
- A description of any significant health, safety, welfare or education concerns related to the child(ren);
- Any evidence of abuse or neglect;
- An analysis of your goals and what future custody arrangements will be in the child(ren)'s best interest.
Due to the highly unpredictable nature of custody litigation and the wide discretion of courts, we always recommend that parents mediate their custody disputes, wherever possible. However, if you need an experienced custody litigator to assist you with your custody and visitation issues, you can be assured that Murphy Law has the experience, skills, and legal knowledge to assist you with your custody issues.
Because we know you have many questions, below we provide some general information based on frequent questions we receive that may help you better understand how the child custody process works in California and certain laws relevant to custody matters. The following is not a substitute for legal representation and the information below is not intended as legal advice.
Is there a preference for one parent over the other when a court makes a custody order?
In California, there is no presumption for any particular custodial arrangement for children, nor is there a presumption for or against equal custody. Instead, there it is the fundamental policy of the law to ensure that children have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities of child rearing. Courts are tasked with determining a custody arrangement that is the child's best interest and they are given wide discretion to accomplish this directive. Without court orders saying otherwise, both legal parents are equally entitled to custody of their child. Because courts have such wide discretion, and the meaning of what constitutes the child's "best interest" is so subjective, we encourage clients to reach as many agreements as they can and mediate custody issues wherever possible.
What is Child Custody Recommending Counseling (CCRC) and how does it differ from mediation?
When parents litigate child custody or visitation schedules, a judge must send the parties to Family Court Services (FCS) to participate in either confidential mediation or Child Custody Recommending Counseling (CCRC), depending on what program the county uses.
CCRC is the process by which parents are ordered to meet with a licensed mental health professional (e.g. a LMFT or LCSW) to attempt to reach an agreement on custody and parenting time. If the parties are unable to reach an agreement, the CCRC professional (often referred to as a mediator) will draft a report, which is issued to the court, outlining his or her recommendations for a custodial and/or parenting time schedule. These reports are very influential to the court and are often times adopted outright as the temporary custody order and schedule. Because CCRC recommendations are so influential to the judge we never recommend that parents participate in CCRC only after being fulling prepared and educated by an attorney familiar with the CCRC process. At Murphy Family Law, we can thoroughly prepare you for CCRC by helping you organize your presentation and requests, help you understand how to be the most credible person in the room, and maximize your chances at getting a favorable recommendation.
Confidential mediation, on the other hand, is just that – the parties are sent in to mediation to attempt to come to a mediated agreement with a licensed mental health specialist. If the parties are able to reach an agreement, then the mediator will write up the agreements and send them to the judge. The parties then show up in court to confirm their agreement, and those agreements become the order of the court. If the parties are unable to reach any agreements, the mediator will report as much to the court and the parties will need to litigate the unresolved issues in court.
Butte, Nevada, Lassen, and El Dorado Counties all currently are recommending counties; while Plumas, Amador, and most recently Placer Counties use confidential mediation.
What's the difference between legal custody, physical custody, and parenting time (aka visitation)?
Physical custody is the physical custody arrangement between parents. Parents can have joint physical custody, meaning they both share significant periods of custodial time, or one parent can have sole physical custody meaning that the child(ren) physically reside primarily with one parent. Courts determine a physical custody arrangement based upon the child's best interests. After a judgment of custody is entered, changing a physical custody order usually requires a parent to show a substantial change in circumstances warranting a change from joint to sole or sole to joint physical custody. A parent who has less than 25% of the timeshare with a child is less likely to be deemed a joint custodian.
Legal Custody pertains to the right of parents to make decisions regarding a child's educational, religious, medical, and welfare. Generally, parents will share joint legal custody of the child(ren). Only in cases where there are proven instances of abuse, or health, safety and welfare issues, will a court award sole legal custody to one parent. A parent with sole legal custody means that one parent has the right to make decisions concerning the child's health, education, and welfare without consulting the other parent or obtaining their prior agreement.
Parenting time (also known as visitation) refers to the actual timeshare arrangement that parents exercise as their custodial schedule. Parents can have joint physical custody while one parent has less parenting time than 50%. Parenting time schedules can be modified by demonstrating to a court that changing the schedule is in the child's best interest.
What are some typical parenting plan schedules?
While there is no particular normal or typical parenting time schedule, some schedules are more commonly adopted because they work for many parents. Younger children need more frequent and shorter times with each parent, while older children generally do better with longer stretches of time with each parent. Some common 50/50 schedules are as follows:
- 2-2-5 – In this popular schedule parent A always has Mondays and Tuesdays, parent B always has Wednesdays and Thursdays, and the parents alternate Fridays through Sundays. This schedule gives children stability in that they always know where they are going to be on Mondays through Thursdays, and both parent get to alternate long weekends so each parent gets time off with the children, and a “break” equally. The other advantage is neither parent is away from the children for more than 5 days at a time. This schedule is appropriate for parents whose children are grade school or older.
- Alternating 2-2-3 – in this schedule the parents alternate the schedule so that no parent has more than 3 days away from the child(ren). On week one, parent A has Monday and Tuesday and Friday, Saturday, and Sunday, while parent B has Wednesday and Thursday. On week two Parent A Wednesday and Thursday while parent B has Monday, Tuesday, Friday, Saturday, and Sunday. This schedule is appropriate for parents with younger children who want an equitable time share (think children ages three to ten).
- Week on Week off – with this schedule, parents share custody on a weekly schedule, generally choosing to exchange children on a Sunday evening or Fridays after school. This schedule is only generally appropriate with older children (middle school or older).
Can I move away with my child?
Allowing a child to move from his or her primary residence without the agreement of the other parent(s) is not a decision that courts take lightly and a court will consider several factors before it permits a child to “move away” with a parent. While parents always have the right themselves to relocate, once a custody order has been entered, or a petition has been filed, a parent cannot typically move the child away from his or her community without a written agreement or an order of the court. The seminal case, Marriage of LaMusga sets forth many of the factors a court must evaluate, including the child's bonds with each parent, their age, the distance of the move, and the parent's ability to communicate (amongst many others) in determining whether a child can move away from his or her community.
Because a move away matter can take months or sometimes a year to resolve, it is common (and advisable) to start the process early in any year in which a child is to change schools that fall. Every move away scenario is very fact specific and you need to have a thorough consultation with a knowledgeable family law attorney to ascertain your options and possible chances of being able to move with your child. This is definitely one area of family law where you need an experienced litigator to assist you in assessing your matter.
How do I modify custody?
There are typically two ways to modify a custody order – by agreement or by a contested hearing, which is generally how everything in family law works. If you cannot reach an agreement, one parent will need to file a Request for Order “RFO” asking the Court to change the existing custody order. When a parent or other interested party files an RFO, the court will set a hearing date generally 6-8 weeks in the future. Depending on the Court, parties will be ordered to attend mediation or Child Custody Recommending Counseling through Family Court Services either prior to the hearing, or mediation will be ordered at the hearing and the court will set a return hearing for after the parties engage in mediation. The entire process can take 10-12 weeks or longer, provided neither party asks for a trial on custody orders (and in such instance, this can add months to the process). Thus, as you can probably guess, the process is actually quite time consuming.
Can I get emergency orders to modify custody?
Ex parte, or emergency request to temporarily modify custody in our experience are granted rarely, though in our experience that doesn't stop people from filing motions to change custody on an emergency basis. Unless there is an immediate health, safety and welfare concern, a court will not grant emergency orders changing a custody order. What constitutes an emergency to a parent or guardian is frequently not a situation that constitutes an emergency to a court and in some instances, a court can and will sanction a party who impermissibly files an ex parte emergency request to modify custody. An emergency is one that unless a court makes an order, there will be irreparable, immediate harm to a child. Further, a situation of a parent's own making (e.g. failing to get permission to go on a vacation in a timely fashion) is not generally considered an emergency warranting ex parte relief. A custody situation may constitute an urgent matter, but not be an emergency. However, if your child is truly is immediate danger, you should not hesitate to file for emergency relief to protect him or her.
What court has the authority (jurisdiction) to make child custody orders?
A court can only make custody orders, or modify existing orders, if it has jurisdiction to do so under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). UCCJEA jurisdiction is a very complex and nuanced area of law. Shawn has litigated numerous international and interstate jurisdictional custody disputes and serves as a consultant to other attorneys seeking advice and research assistance in dealing with jurisdictional issues. For more detailed information about UCCJEA issues, please visit our Custody Jurisdiction Page.