Child Custody and Visitation

Obtaining a Custody and Visitation Order : In California, the San Diego Family Court system has the ability to make child custody and visitation determinations. The court may make these orders in a variety of proceedings including: (1) divorce proceedings, (2) paternity cases, and (3) ex parte hearings. Once a divorce case is filed, the court has the authority to make decisions regarding the children of that divorce including custody and visitation orders. Parents who are unmarried must file a paternity case with the court in order to obtain custody and visitation orders. An ex parte hearing is an emergency proceeding in which the court has the authority to make decisions and provide relief in a short period of time.

Custody and Visitation Standards : In making child custody and visitation orders, the court’s main concern is the “best interest of the child.” However, there is a great deal of importance placed on “frequent and continuing” contact between the child and both parents. Under California Family Code section 3011, a determination of the best interest of the child shall be based on the following factors:

1. The health, safety, and welfare of the child;
2. Any history of abuse by either parent;
3. The nature and amount of contact with both parents; and
4. The habitual or continual illegal use of controlled substances or alcohol by either parent.

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As indicated by the factors above, domestic violence and substance abuse can have a dramatic impact on a child custody and visitation decision. In fact, Under California Family Code section 3044, a finding that a party seeking custody of a child has perpetrated domestic violence creates a rebuttable presumption that an award of sole or joint physical or legal custody to that person is detrimental to the best interest of the child.

Legal Custody : There are two types of child custody that may be awarded, legal custody and physical custody. Legal custody is the right to make decisions regarding the health, education, safety, and well being of the child. Legal custody may be granted solely to one parent or jointly to both. Sole legal custody may be appropriate in situations with a history or abuse or neglect perpetrated by one parent.

Physical Custody : Physical custody refers to the daily parenting of the child. If a parent cares for the child more than one-half of the time, that parent is considered the “ primary custodian.” The other parent is granted visitation with the child, which is usually scheduled on a weekly, biweekly, or monthly basis depending on the particular arrangement. Visitation is generally granted in all cases unless the court has facts to indicate that an award of visitation would be detrimental to the child.

If you are interested in obtaining a child custody and visitation order, modification, or child support we can provide you with information and guide you through your options. Our team of experienced attorneys is prepared to litigate on your behalf. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego to meet with Andrew J. Botros or Matthew S. Blado.