How Does The Court Determine Child Visitation Privileges?

In California, there is a presumption that, in general, a mother and father (or domestic partners) can work together to raise a child jointly, even after they no longer live in the same household. This is referred to as “joint legal custody.” It involves collaborating on decisions that directly affect the health, welfare, education, and religion of the child (or children).

That’s one aspect of child custody. The other key component is called “physical custody,” relating to where the child actually lives and who takes care of him or her daily. Whether by a parenting plan agreement reached by both parties or through a court decision made due to a dispute between the parents, one of the two parties will be designated “primary physical
custodian.” The conditions of that parent’s custody are subject to whatever visitation rights the other person receives—rights which can range from “no visitation” (in those rare cases where one party’s even seeing the child is deemed to be detrimental to the child’s best interests) up to equal periods of time with each parent.

Types of visitation include:

  • “Reasonable visitation” – The most common form of visitation. These rights can vary
    from visiting the child on weekends and alternating holidays to an equal timeshare
    (where each party has, in effect, equal rights of reasonable visitation with the child). A
    primary physical custodian is generally selected by the Court to cover a few critical areas,
    such as school placement of the child. This primary physical custodian is entitled to
    declare the child as a tax exemption and as a dependent on their income taxes—unless
    there is a prior agreement to the contrary.
  • “Restricted (supervised) visitation” – In these cases, the Court determines the child cannot be left alone with one party, so the other parent or a third party (friend, family member, social worker) must be present to supervise the visit. This can happen when the Court decides that someone must be present to witness interactions between the child and the visiting parent, in the event of future legal disputes regarding child visitation rights, or just to make sure that there is a peaceful and, hopefully, meaningful visitation between a parent and a child.

An effective parenting plan should include provisions for regular visits (weekly, biweekly, monthly) as well as holidays and vacation time with the child. The schedule can be different for different children in the family, such as in situations when each child is on a different school schedule, or when children have different extracurricular schedules.

When determining the parties’ respective future rights to custody and visitation, the Court usually looks for answers to the following questions:

  • How were the two parties taking care of the child before the divorce proceedings began and since then?
  • Who has been the primary physical custodian?
  • Is the current arrangement working? Can it continue to work? Is it truly in the child’s best interests?

The two parties involved may have different answers to these questions, which then leads to the Court stepping in and deciding for both of them.

In my opinion, the two parties in a divorce proceeding (or dissolution of domestic partnership) should do everything they can to attempt to work out a parenting plan agreement between themselves. After all, who knows the best interests of their child better than they do? When they can’t work it out, the decision is left up to a judge who doesn’t know either party or the child
involved. And a prolonged legal dispute makes the whole experience more expensive, time-consuming and emotionally turbulent for everyone involved.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from bankruptcy, family law and estate planning to traffic violations and landlord/tenant disputes.

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