Custody can be one of the most complicated and emotional issues involved in a dissolution of marriage. Children can become a divorce’s unseen and unheard victims. The court is responsible for protecting the children’s well-being, even if doing so conflicts with the wishes of either or both of the parents. Often the children have no representation in the courtroom, so the Judge must use his or her knowledge and experience to determine what is best for the children. To that end, the court relies on evidence about the parents and the children in an attempt make orders that cause the least disruption in the children’s life.

The California statutory scheme requires parents to go through some kind of court approved mediation, before litigation, in an effort to minimize the traumatic impact on all involved, especially the children. Not uncommonly, a forensic psychologist is appointed to help assist the Court in making an informed decision on the proper placement of the children. Occasionally, when the children’s interests are divergent from the parents’ interests, the court will appoint independent counsel to represent the minor children.

Generally, there are two types of custody: Legal and Physical. Legal Custody involves responsibility for major decisions that effect the children’s lives. Examples include decisions related to the health, education, general welfare, and/or religious upbringing of the children. California has a preference for joint (shared) Legal Custody of the children, whenever possible.

Physical Custody determines what the child visitation rights, if any, are awarded and where the children reside. In the case of multiple minor children, custody of all children is usually awarded to one parent instead of breaking up the children. However, the court has the authority to place the children in different homes if the situation warrants doing so. Children normally are not given a choice regarding which parent will have primary Physical Custody. In some cases, however, children who have reached an age where they can make a reasoned choice are permitted to state a preference. The stated preference is not binding on the Judge, though, who must still act in the best interests of the children, regardless of the children’s wishes.

If the parents can not reach an agreement regarding custody of the minor children, and if the evidence is incomplete, unclear, or contradictory, then an psychological assessment by a court-appointed expert may be ordered. The evaluator — usually a highly-trained and experienced specialist in such matters — attempts to determine if one of the parents falls outside the bounds of “normalcy.” Or if both parents are found to be “normal,” the evaluator will advise the court as to which of the parents will provide the most beneficial environment for the children.

Custody issues can be heart-wrenching and very divisive; the advice and counsel of an experienced lawyer can be invaluable.


Visitation — also commonly know as “time-share” — is the compliment to child custody. When primary physical custody is award to one parent, the other custodial parent will usually have some type of court ordered time-share privilege. The court has a responsibility to allow visitation privileges to a parent unless the visitations are deemed detrimental to the children. These privileges vary from cases to case, depending on all kinds of factors, and sometimes can be the single most contested issue in a divorce.

Initially, the court expects the parents to come to an agreement by themselves regarding visitation privileges and procedures. Court involvement transforms an already difficult process into a far more invasive, complex, and expensive one. Only after the parents have demonstrated that they cannot come to an agreement by themselves — or with the help of an appropriate mediator — will the court involve itself and make a ruling on the issue.

Cases that involve accusations of domestic violence or abuse are especially difficult. Such accusations can result in “monitored visitation” whereby a parent may spent time with the children only under the supervision of a court-approved monitor. Unfortunately, in these cases, it is often up to the accused parent to prove that he or she has done nothing to warrant such an infringement of his or her parental rights.

An order regarding time-share sometimes includes a specific set of guidelines that each parent will be expected to follow regarding the transfer of the children. In cases where one parent is in a location that he or she wishes to remain confidential, such as a shelter for domestic violence victims, the court will take steps to insure that the parent’s residence will remain confidential. For example, by having the transfer of custody take place in a safe, neutral location such as a local police station.

Time-share is a very important consideration in most dissolutions. This is true not only because time-share determines the time spent by each parent with the children, but also because time- share has a major impact on the amount of child support awarded. Proper legal representation can help protect your rights.

For answers to your questions regarding  your Child Custody / Visitation case, Call us today at (714) 538-3344  to schedule your free initial 30 minute in office consultation with Attorney Joseph H. Bawerman.



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