In any action where the parties have minor children, it will be necessary to obtain court orders pertaining to the custody and/or visitation rights of each parent. Every family is strongly encouraged to work out a shared parenting plan among themselves. However, in many cases, and for many different reasons, the parties are incapable of reaching an agreement on their own. If this is true in your case, it will be necessary for a trained professional (a.k.a Child Custody Counselor) to assist you and the other parent in reaching a resolution.
- What does the law say about my rights to custody and visitation?
- What if I do not think that my spouse is a good parent and the children are better off with me?
- If we have an agreement on how we want to share custody do we need to go to court?
- What if we cannot agree on a shared custody schedule for our family?
- What if my children are in danger in the custody of the other parent, as a result of abuse or neglect?
- Can I force the other parent to take parenting classes or undergo anger management?
- Where can I learn more about helping my children through this process?
1. What does the law say about my rights to custody and visitation?
The law begins with the presumption that both parents have an equal right to time with the minor children. California has no law that favors either mother or father. The policy of the law in California is to allow the children frequent and continuing contact with both parents, so long as the children are safe in each parent's care.
2. What if I do not think that my spouse is a good parent and the children are better off with me?
There are times when the children's health, safety, and welfare require that they be with one parent more than the other. In these cases, there is strong evidence that one of the parents is either neglecting the children or subjecting them to physical, emotional or mental harm while in that parent's custody. However, more often than not, it is the breakdown in the parents' relationship that leads one spouse to feel strongly that the other spouse is a "bad parent." In this case, it is extremely important for each parent to examine their own intentions during their quest to limit the other parent's custodial/visitation rights.
An overwhelming majority of studies show that children experience far less damage as a result of the breakdown in their parents' relationship if they are able to maintain a constant and ongoing relationship with both parents, AND the children are not subjected to the criticism that one parent expresses about the other.
This means that even if your relationship with the other parent is strained, the children will still substantially benefit by you
- being the best parent you can be during your custodial time,
- encouraging the children to spend time with the other parent,
- not speaking negatively about the other parent in front of the children (regardless of whether you are right or wrong!), AND
- always reminding the children that they have 2 parents who love them very much.
This can be one of the most difficult tasks for many parents going through either a dissolution or paternity action. It is very natural to experience extreme emotions during the pendency of these proceedings but your children will thank you in the future if you make sure that they are not witness to that emotional roller coaster!
Please note: It is the professional philosophy of the attorneys at Family Law Group, LLP, to always keep in mind your children's welfare throughout your case. If your Attorney believes that you may be having some difficulty shielding the children from the negative effects of this process, he or she may recommend reading materials, counseling, and/or parenting classes that will aid you in maintaining a healthy environment for your children.
3. If we have an agreement on how we want to share custody do we need to go to court?
No. If you and the other parent agree on the timeshare schedule that works best for your family, notify your Attorney and we can prepare the agreement for everyone to sign. That agreement can be filed with the court and signed by the judge as the Court's order.
4. What if we cannot agree on a shared custody schedule for our family?
If you are unable to reach an agreement, your Attorney may file a a motion with the court on your behalf, for child custody and/or visitation. This motion will set a court date out approximately 6-8 weeks from the date of filing. Both parents will be ordered to attend counseling with Child Custody Recommending Counseling Services (located near the Hayward Courthouse in Alameda County). This service is free to the parents. Both parents will meet with a counselor together, unless there are restraining order(s) in effect, to assist you in reaching an agreement. If you are still unable to reach an agreement, the counselor will make his or her recommendation to the court based on the discussions during your counseling appointment. This recommendation will be reflected in the counselor's recommendation which you will receive on the morning of your court date. The counselor's recommendation does carry a lot of weight in court, however, if you have specific objections, there may be ways to address your concerns. Your Attorney will explain these alternatives in the event that you disagree with the counselor's recommendation.
At this point, most agreements that are reached are not permanent. The custody/visitation orders will be reviewed over the upcoming months and changes may be recommended until the parties have reached a schedule that best suits each family.
Private counselors are also available for hire upon both parents' mutual election.
5. What if my children are in danger in the custody of the other parent, as a result of abuse or neglect?
Discuss these concerns with your Attorney immediately. There are emergency orders which your Attorney may request. However, these requests are reserved for situations where a child is suffering from actual abuse or is in imminent danger of being harmed.
6. Can I force the other parent to take parenting classes or undergo anger management?
A request for parenting classes and/or anger management classes may be appropriate under certain circumstances. The reasons for your request should be discussed with your Attorney and also discussed in mediation. The mediator has the ability to recommend to the court that one or both parents participate in programs or classes that will benefit your children.
7. Where can I learn more about helping my children through this process?
There are many resources available to parents who want to learn more about how to help their children survive and flourish after the breakdown of their parents' relationship. Kid's Turn is a wonderful program in which both the parents and the children participate. This program offers two separate rooms for parents who do not wish to participate in the classes together. Children and parents alike benefit from the group sessions that focus on the children's needs during this difficult time. You may find more information by speaking with your Attorney or visiting the Kid's Turn website at www.kidsturn.org.