Child Custody and Visitation in California
By Allysyn Overton, Esq.
Understanding these different terms is important when navigating your court proceedings. Below are the definitions of each and how they are typically handled in court. There are two types of custody, which are different than visitation. People often misunderstand child custody and visitaiton. They may say “custody” when they really mean “visitation.” So, it is important to understand the legal terms of child custody and visitation before you start a child custody and visitaiton court case, so that you are asking for the correct child custody and visitaiton orders in your court documents and at your child custody court hearing.
Legal Custody
Legal custody refers to who has the decision-making power over the child(ren). What school is chosen, what pediatrician, glasses or contacts, etc. The parents can have joint legal child custody, or the court can award one parent sole legal child custody. Typically, courts want to see both parents involved in the decision-making for children, but exceptions, so will issue joint legal child custody orders. However, courts will consider multiple factors in deciding child custody, like a history of domestic violence, substance abuse, or other behaviors that render one of the parents incapable of engaging in joint legal child custody are common.
Physical Custody
Physical Custody refers to with whom the child resides. Like legal custody, parents can share joint physical custody, or the court can order that only one parent maintains sole physical custody. Typically, parties who share an even or close-to-even timeshare of the child(ren) will share in joint physical custody. When one parent has the majority of the timeshare, courts typically grant that parent sole physical custody. Physical custody does not have a whole lot of power like legal custody does, but can be useful in choosing a school, as the child’s residence will determine what school district is applicable. Physical custody also is important if one parent wants to move further away from the other. If the parent with sole physical custody wants to move, the court will usually side more with a parent who has sole physical custody when deciding whether the move-away is appropriate or not.
Visitation
Visitation refers to the timeshare of the child(ren) and parents, or how often the child will visit each parent and when. There are a number of common visitation scenarios:
2-2-3 visitation: The child visits parent 1 for two days, then switches to visit parent 2 for 2 days, then goes back to visit parent 1 for 3 days. This ends up creating an alternating weekend scenario. This visitation schedule is best for children under ten, as children of that age should not go too long without visiting the other parent. This visitation schedule looks like this:
2-2-3 visitation schedule
Monday Tuesday Wednesday Thusday Friday Saturday Sunday
Parent 1 Parent 1 Parent 2 Parent 2 Parent 1 Parent 1 Parent 1
Parent 2 Parent 2 Parent 1 Parent 1 Parent 2 Parent 2 Parent 2
Parent 1 Parent 1 Parent 2 Parent 2 Parent 1 Parent 1 Parent 1
Parent 2 Parent 2 Parent 1 Parent 1 Parent 2 Parent 2 Parent 2
2-2-5 visitation: with a 2-2-5 visitation schedule, the child visits with parent 1 for 2 days, parent 2 for 2 days, then parent 1 for 5 days. This visitation schedule is best for children over ten, as they do okay not having visitation with the other parent for several days at a time. This visitation schedule allows each parent to have full weekends, but also sometimes split their weekends with the other parent. This visitation schedule can sometimes make planning ahead hard, as the parents have to sit down with a calendar and mark out their visitation timeshare. It looks like this:
2-2-5 Visitation Schedule
Monday Tuesday Wednesday Thursday Friday Saturday Sunday
Parent 1 Parent 1 Parent 2 Parent 2 Parent 1 Parent 1 Parent 1
Parent 1 Parent 1 Parent 2 Parent 2 Parent 1 Parent 1 Parent 2
Parent 2 Parent 2 Parent 2 Parent 2 Parent 1 Parent 1 Parent 2
Parent 2 Parent 1 Parent 1 Parent 1 Parent 1 Parent 1 Parent 2
Week on/Week off visitation: A week on/week off visitation schedule is great for teenagers, as teens tend to do just fine going a full week without seeing the other parent, and do better with fewer transitions. With all of the activities keeping teens busy these days, many parents of teens, like this visitation schedule. Week on/week off visitation looks like this:
Week on/Week off Visitation Schedule
Monday Tuesday Wednesday Thursday Friday Saturday Sunday
Parent 1 Parent 1 Parent 1n Parent 1 Parent 1 Parent 1 Parent 1
Parent 2 Parent 2 Parent 2 Parent 2 Parent 2 Parent 2 Parent 2
Parent 1 Parent 1 Parent 1 Parent 1 Parent 1 Parent 1 Parent 1
Parent 2 Parent 2 Parent 2 Parent 2 Parent 2 Parent 2 Parent 2
The 2-2-3, 2-2-5, and week on/week off visitation schedules are all used when the parties are ordered to have even timeshares. Absent a finding of domestic violence, substance abuse, or abandonment by one of the parties, courts will be inclined to order even visitation timeshare schedules. But what about situations where uneven visitation timeshare is appropriate? Just like with even visitation, there are a number of uneven visitation schedules courts can order.
Supervised Visitation
When a finding of any concerns about one of the parent’s parenting abilities, such as in cases of domestic violence, substance abuse, or not being in the child’s life much, the court may want to see that parent have a few supervised visitation sessions first. This ensures there is a responsible adult present for the visitation just in case the parent becomes inappropriate or abusive with the child(ren), the parent appears to be under the influence of substances, or the child experiences anything untoward during the visitation. That other adult can intervene if necessary and terminate the visitation whilst ensuring child safety. Then, that adult can report back to the court about how the visitations went. From there, the court can make further visitation orders. If the visitation supervisor reports back that the visitations all went well, the court will be inclined to order unsupervised visitation for that parent. However, if the visitation supervisor reports any concerns to the court, the court can terminate the visitation, order visitation or reunification therapy for the parent and child, or that the parent’s visitation maintain being supervised. Typically, the schedule of supervised visits is limited to the availability of the supervisor. Sometimes supervised visitation is ordered to be done by a professional visitation supervisor, and other times, the parties agree on a friend or family member to supervise the visitation. Supervised visitation rarely includes overnights, unless the overnights can take place at the visitation supervisor’s residence.
Every Weekend Visitation
This type of visitation is common as a next step after a parent has graduated from supervised visitation, or in cases where one parent cannot for whatever reason, have visitation during the week—perhaps their rigorous work schedule doesn’t allow it, or perhaps, the parties live too far apart for the child to make it to school in the morning. This visitation is usually not for a very extended period of time, as the other parent is not getting any weekend time at all.
Alternating Weekend Visitation
This type of visitation is also common as a step up from supervised visitation, or is ordered when one parent cannot have visitation during the week. This visitation ensures that both parents get some weekend visitation timeshare with the child(ren).
Visitation Exchanges
Visitation Exchanges is an important concept in any custody/visitation matter. Visitation exchanges refers to how the child(ren) is/are exchanges between the parents. In supervised settings, the exchanges takes place at the supervision center. If the visitation is being supervised privately, the exchange may take place at the supervised parent’s home. If the parties’ relationship is still relatively contentious, it might be best to have visitation exchanges take place in a public place. I worked on one case where the father was always twenty, even thirty minutes late to the visitation exchanges, but denied being late to the court. As a way to track whether he was on-time or late, the court ordered the visitation exchanges to take place at a starbucks between the homes, and each party had to buy something from inside and get a receipt. Then, the court reviewed all the receipts and noted that the father indeed had been very late to most of the visitation exchanges. Thus, the court ordered that if he was more than fifteen minutes late, he forfeited his visit.
School visitation exchanges is also a great and easy way for the children to travel back and forth. School exchanges have parent 1 drop off the child(ren) at school, and the parent 2 picks up that day from school. Keep in mind that this forces everyone to consider what the child(ren) should pack before school on visitation exchange days, as whatever the child(ren) need(s) for the other parent’s home will need to travel with him/her/them on exchange days. Parents often enjoy school visitation exchanges as they are a bit easier to fit into work schedules, and they mean not having to interact with the other parent as much, which is very helpful in contentious cases.
Holiday Visitation Schedule
Planning out a holiday visitation schedule is very important. Without one, you are stuck with whatever days fall on your regularly schedule visitation, no matter what holiday it happens to be. Common
holidays to consider are any days your child(ren) has off from school, important religious holidays, mother’s day, father’s day, and birthdays. California has a great court form that makes it easy for you to plan out a holiday schedule and request it from the court. This is form FL-341(c), and can be found here: https://www.courts.ca.gov/documents/fl341c.pdf
Visitation Mediation
In California, parties are required to attend mediation with the court’s own mediators to see if they can reach an agreement about visitation. The court will usually (absent any emergencies) not make any visitation orders until this is done. Remember, that you and the other parent know your lives and children better than a stranger in a black robe. In my experience, parties that reach visitation agreements end up having healthier and happier coparenting arrangements with the other, and tend to have an easier time in court. Of course, this is not always possible or even appropriate. For example, in situations of domestic violence. However, even then, the court will order you to attend mediation. In domestic violence cases, the mediator will meet with the parties separately. You should be willing to settle, but do not have to settle just for the sake of settling. The visitation terms should be something you can live with. They might not be exactly what you want, but a little compromise can go a long way. Settling also means less time in court and often fewer attorney’s fees.
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