Child custody and visitation in California divorce

In California, there are several aspects to the care and control of your child.

The first is custody, and there are two kinds: physical and legal, and for each there are two options – joint and sole custody. Physical custody is where your child lives. If your child lives with you and your ex, then you will have joint physical custody, even if one parent just has one or two nights a month. Only if one parent has a very limited amount of time with your child will one parent have sole physical custody.

Many parenting plans (custody and visitation orders) have a designation of “primary custodial parent,” which is commonly referred to as the parent that has more time than the other. Some parents are adamant that they want this designation. Legally, however, there is no significance to this term. It means nothing, and in my opinion is a potential point of contention that should be eliminated in agreements and orders.

The other aspect is legal custody. Legal custody is the responsibility for the decisions regarding the health, welfare, and education of your child. In the vast majority of cases, this will be joint instead of sole custody, unless, again, one parent is simply absent from the child’s life. Legal custody means that you have to make joint decisions with your co-parent regarding your child’s education (public versus private school? Religious training?), health (surgery? braces?), and can even encompass things such as haircuts (shaved heads and spiked designs come to mind), piercings (sometimes ears, but more often eyebrows and belly buttons), and tattoos.

A common desire by some parents is to simply eliminate them from their child’s life much as they are eliminating the other parent from their life. This is not likely to happen. If a parent wants to be involved, even intimately involved, with their child, then that is to be encouraged. It is understandable that one parent may want to put some distance between themselves and their ex, but the legal reality is that if you have a child with someone, then your life is going to be entangled with the other parent until that child is an adult, and often beyond that.

Secrets of winning child custody in California

I have many clients that come into my office and say they “want custody” of their children.  What does this mean in a California divorce or paternity case? Most often, it doesn’t mean what the client thinks it means.

In California, there are two kinds of custody: physical and legal.  Physical custody involves where your children live.  If they live with both parents, as in most cases, then custody is shared jointly.  In the case where one parent is not involved at all with the children or has domestic violence or substance abuse issues, then one parent may have sole physical custody.  The norm is shared joint physical custody.  Legal custody involves which parent has the right to make the decisions about your children’s health, education and welfare.  Again, this is generally joint except in the instances mentioned above.

What most clients are talking about when they say they want custody is the parenting plan.  This is the schedule of when your children will be with which parent.  I am often asked what a “normal” schedule is, but the reality is that schedules vary as much people do!  The important part of creating a parenting plan is to keep your children’s needs in the forefront of your mind.  They are adjusting, too, and the transition is difficult on everyone.

Second, be reasonable.  You may despise your ex, but that doesn’t give you the right to cut him or her out of your children’s lives – they remain a parent even though they are no longer your spouse.  A judge will frown on an unreasonable request made for no good reason.

Third, pick your battles.  Remember the adjustment period?  Well, that often translates into dropping grades, acting out, misbehaving, sleep problems, and overall a difficult mood or behavior from your children.  This doesn’t mean it’s all your ex’s fault, and it’s not your fault, either.  It’s just a natural part of the process.  Now, if your spouse is acting inappropriately, such as not properly feeding or dressing/grooming your children before school or harming them, then you should see the judge immediately.  But normal acting out in a divorce is, well, normal.

Finally, remember that it will pass.  At some point the custody fight will end and you will settle into a routine.  I mean, you can fight until your children are 18, but do you really have the time, money and energy to do that to yourself and to your children?  The sooner you can get to that normalcy, the better for everyone.

Signs your spouse is considering divorce

It is not uncommon for one spouse to be surprised, blindsided even, by the divorce filing of their spouse.  Often, though, the surprised spouse can look back in hindsight and see the signs.  Here are some:

  1. A new vocabulary.  If your spouse starts saying words like “custody” or “community property,” “date of separation” or “dissolution” even (and these terms may not be in the context of your marriage, but may be dropped in conversation about someone else, for example), then this may be a sign s/he is talking to a divorce attorney, or at least gathering information.
  2. Shifting of accounts or money.  If your spouse suddenly wants to move money around, it may be a sign of impending division.
  3. Changes in his or her relationship with family members.  If your spouse has been estranged from her mother during the marriage and now they’re tight, it may be because the rift was due to the marriage.  Now that it’s ending, the rift is healed…you just don’t know it yet.
  4. Super Parent, or changes in parenting.  A spouse getting a divorce may suddenly become super-parent, trying to establish a pattern of caring for children when that wasn’t necessarily the case before.  Your spouse may be setting the stage for the impending custody battle.
  5. Sudden reduction in work hours, overtime, or business.  Many spouses, in the face of paying child or spousal support, find themselves with less work, business, or overtime, and sometimes bosses are complicit with this temporary reduction to avoid higher support amounts.
  6. Secret conversations.  Catching your spouse spending money or talking to someone on the sly may not mean an affair – it may be an attorney or s/he may be talking to others about you.

Divorce is difficult in the best of circumstances.  If you keep your eyes and ears open, though, you may be able to avoid being taken by surprise.

Changing child custody and visitation after the divorce is final

So, you got divorced a year ago…or two or five or ten years ago, and you want to make a change to your custody plan. Called a “post-Judgment modification,” it frequently comes up, especially when custody arrangements were made when children were little…and now they’ve grown. Extra-curricular activities, changes in residence or school, and gradual agreed-upon modifications in the custodial plan can cause problems when there’s a disagreement down the road. Or, common too is when the custodial plan just isn’t working.

I frequently get questions about problems with child custody and visitation after a couple has gotten a divorce, or completed their paternity suit and gotten a Judgment. One parent is constantly late or absent, one parent keeps changing the parenting plan, or one parent has a new boyfriend or girlfriend, and the new significant other is causing problems, or there is some problem with the child that one parent thinks is the other parent’s fault.

The answer is that there is a solution to these issues. Once your divorce is completed, or you have a Judgment, any of your orders can be modified upon a showing of a “change in circumstances.” A change in circumstances is some change from the time of your divorce/Judgment that has caused the problem. It could be a work schedule change, a new partner in your ex’s life, a change in residence, a change in the child’s school performance or behavior, or just a change in the situation. Most courts are pretty lenient when it comes to what kind of change is required.

But you do have to file a motion with the court if you can’t get an agreement with your ex about the change. I always recommend starting the easy way, which is sending a letter or email about the change you want, why you want it, and what steps you will take if the ex doesn’t agree. The steps you take may include going back to court, and you have to make that decision before you put it in writing.

If you have been through a divorce, you probably know how tough the court system can be on your wallet, your nerves, and your relationship with your ex, so think hard about whether you want to open up that can of worms. A qualified attorney can help you to assess the pros and cons of each option, and which would be the best for you and your family. If the situation isn’t working, get the advice you need to remedy the situation.

What is a dissolution and why can’t California just call it a divorce?

At some point in the 1970s or 1980s, California decided that the word “divorce” was too casual, so it switched to the term “dissolution” for the breakup of a marriage.  Regardless of what you call it, however, every dissolution has several common issues.  Not every divorce is identical, of course, and your case may not include some of these issues (for example, if you do not have children), but many do.

In every divorce (or dissolution) case, the court has a universe of issues it may resolve. The issues are child custody and visitation, child and spousal support, property and debt division, attorney fees, and status. Here is an overview of each:

There are two aspects of the non-financial issues with your child/ren: custody and visitation (or parenting time). There is physical and legal custody, and you can have joint custody or sole custody (for one parent). Parenting plans vary like personalities. Some parents share parenting time equally and fluidly with few specifics written down. Some parents have to have every detail recorded in excruciating detail. There are some “standard” parenting plans, but by no means are they uniform.

Child and spousal support are also issues in a divorce case. Support is calculated using a software program adopted by the State of California. You can find it for free here: Support Calculations. Permanent, or long-term, spousal support is calculated using a variety of qualitative factors not necessarily related to the software, however.

The court will also divide all property and debt you and your spouse acquired during your marriage. This includes any real property, or homes, as well as personal property, vehicles, bank and stock accounts, 401Ks and pension/retirement accounts, and any and all debt. California law provides for EQUAL division of all property and debt incurred during the marriage.

The court can and will also resolve the issue of attorney fees, particularly if the incomes of the spouses are very different. If one spouse makes the majority of the money in the household, the court will likely order that spouse to pay the majority of the attorney fees.

Finally, there is the issue of your status. Your status is whether you are divorced or single. You can separate, or bifurcate, the issue of your status and become divorced if you feel your case is taking too long. Divorce cases can last several years. Most often, your status is dissolved, making you a single person, at the resolution of your case. The earliest this can happen is six months and one day from the time the Petition was served on the Respondent.

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So, your spouse has hired a lawyer in your California divorce. What do you do? How to negotiate with OPC (opposing counsel)

One of the most terrifying things you can experience in a divorce is coming into court, expecting the hearing to be between you and your spouse, and finding out that your spouse has hired an attorney.  It can be scary.  Lawyers vary, too, in how they deal with unrepresented litigants.  I am always polite but firm.  I know one attorney who is outright nasty, from calling the other party names to threatening them to yelling at them.  You can’t always expect that an attorney is going to be civil…or even professional, unfortunately.

So, what do you do?  First, if you find yourself in the situation, and you want to or think you can hire an attorney, ask the judge at your hearing to continue (postpone) the hearing so you don’ t have to go forward and get steamrolled by the attorney.  Then get thee some legal advice and/or a lawyer, ASAP!  Generally judges will allow unrepresented parties a break if blindsided by an attorney at a hearing.

Second, if you get an attorney or other help or not, make sure you learn as much as you can about your case and the law.  The more you know, the better decisions you’ll make and quite possibly, the less you’ll pay for your attorney.  Nolo Press has some great books.   Third, remember that the attorney is getting paid to do a job, and is also a person as well as an attorney.  If the attorney is rude or says things you don’t like, it’s not because they have it out for you.  They’re doing their job.  They also may be a fantastic attorney, or they may not be so knowledgeable or experienced.  They may be having a bad day.  They may hate their client.  You just don’t know what’s going on in their head, but if you treat them like you would treat your ex (react emotionally, take offense to everything, or reject everything they say simply because they’re saying it), it’s not going to be productive.

Fourth, remember to keep your eye on the ball (and the bill!).  Don’t spend $1,000 on attorney fees over a $500 stereo.  If the other attorney has a reasonable proposal, don’t refuse to agree to it out of mistrust. I’ve had many clients insist that I draft settlement documents because they didn’t trust the other side.  In certain cases, this is appropriate since the other side might be sneaky. But in many cases, this just isn’t true and by having your own attorney prepare documents, you’re just upping the bill for yourself.

Finally, try to keep it together.  If you tend to be overly emotional, see a therapist.  Lawyers won’t help with this at all.  As soon as you can and as much as you can, try to view the divorce as a business relationship breaking apart.  This is the way the court sees it, so the sooner you get on board, the better.  This may see impossible, but it can and should be done as it will be better for everyone.

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Divorce and the sleepover with the new boy-/girlfriend: When is it ok when there are children in the house?

The divorce process can take years, literally. In addition, in many cases, the relationship is long over by the time the couple pulls the trigger on the divorce paperwork. In the Bay Area – in California – the waiting period is six months, which means that a couple cannot be divorced earlier than six months after the divorce Petition is filed. But some divorce cases – I had one recently out of San Ramon – can be resolved in a matter of weeks, and the paperwork is just a little slower. Other divorces – like one client I have from Oakland – can go on for years and years.

So, with those varying timetables, in many cases it seems inevitable that one or both parties will move on into other relationships. Also inevitable is what the parent is to do when faced with the dilemma of when to allow the significant other to sleepover or, perhaps more difficult, when to allow the ex’s significant other to sleep over. Here are some tips to consider:

1. Just because it’s too soon for you may not mean it’s too soon for your ex or your child(ren).
2. Making it a big deal makes it a big deal.
3. Try to understand your child’s point of view, and then determine how to react. Children can be very adaptable, so the change from dates to overnights may not make much difference to the child.
4. If you can, get to know the significant other. And don’t interrogate your child to do so. Simple, non-threatening questions about whether your child likes the significant other, and why, what they do together, how much time they spend together, and what they talk about will be sufficient. Don’t make it an agenda about your ex! Make sure you’re asking to determine the relationship the significant other has with your child, because this is the important part.
5. Take into consideration the age of the child, as well as the child’s maturity, always bearing in mind that it is likely to be much more traumatic for you than your child.

It’s inevitable that it will happen sometime, so you might as well make it an easy transition now. Plus, the better you react, the more likely your ex will react well when it comes time for you to have a sleepover.