Child custody. It can be one of the most stressful elements of the divorce process. But it doesn’t have to be.
As a child custody attorney with 16+ years of experience, I’ve composed a guide to help you learn the ins and outs of the child custody process.
In This Child Custody Guide You Will Learn...
Types of Custody
There are two types of custody that need to be assigned when getting a divorce, legal custody and physical custody.
Legal custody refers to who has the right to make important decisions for your child. Examples of these types of decisions could be:
- Where your child goes to school
- Medical decisions
- Religious decisions
- Anything else related to health, education, and welfare
Legal custody can be joint (meaning both parents share the right to make these types of decisions) or sole (meaning that one parent has the exclusive right to make one or more of these types of decisions).
Physical Custody refers to who the child lives with. Physical custody can be joint or sole. It is important to note that if you have joint physical custody, it does not mean that the time will be split 50/50.
It’s important to remember that the court believes that a child has the right to have an ongoing relationship with both parents, unless there is abuse involved.
Factors Determining Custody
What is the #1 factor the court considers when determining child custody in California?
The best interests of the child.
California law says that the health, safety, and welfare of the child must be the court’s top priority.
And the court believes that it is in the child’s best interest to have an ongoing relationship with BOTH parents (unless there is abuse).
Here are some factors that the judge will consider when signing off on a child custody arrangement:
- The physical, emotional and mental health of each parent
- Each parent’s ability to provide for the children’s needs (physical, emotional and medical)
- Which parent (if either) provided the majority of the childcare before separation (courts will often favor continuity)
- The quality of the relationship between the children and each parent
- How the children will be affected by the proposed custody arrangement
- The level of attachment between the children and their home, school environment and community
- Each parent’s living accommodations
- The current mental and physical health of each parent and each of the children
- The attitudes of both parents when it comes to coparenting
- The wishes of each of the children (if they are old enough)
- The preferences of each parent
Child Custody Legal Process
How to Avoid Court
No matter how you slice it, you and your ex are your child’s family. There will be birthdays, concerts, sports games, parent-teacher conferences, and a whole slew of activities that both of you will ideally be a part of. A nasty, drawn out child custody battle does not lay the grounds for a healthy co-parenting relationship.
You and your ex DO NOT have to agree on everything in order to avoid court.
You have options.
In mediation, two parties come together and hire a third party mediator. The mediator is neutral and does not act as either party’s attorney, but helps them both to reach an agreement and navigate the law. They “mediate” your disagreements and offer a third party, neutral perspective.
There are so many advantages to mediation. Mediation allows couples to settle their divorce out of court, keep their personal information out of the public record, save a significant amount of time and money, and it also tends to be much less stressful.
When selecting a mediator, look for either a family law attorney or a mediation specialist. The pros about hiring a family law attorney? They know the ins and outs of divorce law, so they will be able to ensure that your agreement will be legally sound. They should also explain the strengths and weaknesses of your respective position from a legal standpoint.
Even if all elements of the case are not settled during the mediation process, it still will save you a significant amount of money. It is much more cost efficient to have a judge resolve maybe one or two issues in court vs. every element of your divorce case.
Collaborative divorce (also known as collaborative law) is another option for those who want to avoid going to court. In collaborative divorce, each individual hires a divorce lawyer who assists them in negotiating the terms of the divorce. Each individual meets and counsels separately with their own lawyer and often a team of other experts in the areas of child custody, accounting, and mental health. The group then comes together and meets several times to work out the terms of agreement.
Both the lawyers and the spouses sign an agreement that they will not go to court. But, if for whatever reason, an agreement cannot be reached and the case has to go to court, the divorce attorneys will withdraw from the case and the parties must hire new divorce lawyers.
Collaborative law is not for everyone, but it can help to reduce many of the emotional stresses that often accompany divorce. It is important to hire a divorce attorney who specializes in collaborative law and who has experience in collaborative negotiation.
Important to Remember: A couple does not need to agree on everything (or even most things) in order to avoid court. What they do need, is a willingness to compromise and reach an agreement.
Creating a Child Custody Arrangement + Visitation Schedule
If your child custody case goes to court, the judge will decide on who gets legal and physical custody and also determine the child visitation schedule.
If you do not go to court, you and your spouse must create and agree upon the child custody schedule. You will then submit it to the judge, who will need to sign off on it for it to become legally enforceable. 9/10 times, the judge will sign off on the agreement, so it is important that you ensure your agreement protects your parental rights now and in the future.
Many individuals decide to work with their mediator/family law attorney to create their child custody arrangement. A family law attorney will ensure that you include all of the proper information in the agreement and help you to protect your parenting rights now and in the future.
Some individuals choose to use various software programs to help them create a child custody arrangement. Popular programs include Custody XChange & Our Family Wizard. While this is an option, it is important to at the minimum have an attorney look over your agreement to ensure it is legally sound and will protect your long term goals.
An optimal child custody arrangement will look different to each family. Below are several common schedules that divorce lawyers use. Note that these schedules can be tailored to your family’s unique needs.
Common Child Custody Schedules
There are various types of child custody arrangements. The ideal custody arrangement for each family will look different. Here are a couple of popular child custody schedules.
The 50/50 schedule
Splitting time between parents 50/50 is very common. The most common 50/50 schedules are…
Alternate Weeks Schedule
This schedule is pretty straightforward. One week on, one week off. Some parties opt to have a midweek dinner/date scheduled with the off parent as well.
In this arrangement, a child will spend the first two nights of the week with parent #1, the second two nights of the week with parent #2, and then last three weekend nights with parent #1. The next week, the schedule flips.
In this arrangement, a parent has two set weeknights and the weekends rotate. The child spends two weeknights with parent #1, then two weeknights with parent #2 and then go back to parent #1 for the 3 weekend nights and the 2 weeknights assigned. They then go back to parent #2 for their two assigned weeknights and the 3 weekend nights.
This arrangement cuts down on switches. The only downfall? One parent has all of the weekends. Parent #1 has the child for the first 3 weeknights, and then parent #2 has the child for the last 4 weeknights. The next week, it switches so that the child spends 4 weeknights with parent #1 and then the last 3 weeknights with parent #2.
Other Popular Child Custody Schedules
A 50/50 schedule is not realistic for some families (especially if the parties do not live close). Some other popular schedules include…
Alternate Weekends Schedule
In this schedule, one parent gets primary physical custody, while the other gets alternating weekends. It is typical for the parent with less time to get a midweek dinner/overnight visit in this agreement.
1st & 3rd Weekends Schedule
In this schedule, one parent gets primary physical custody, while the other gets the 1st and 3rd weekends.
1st, 3rd & 5th Weekends Schedule
In this schedule, one parent gets primary physical custody while the other gets the 1st, 3rd and 5 weekends of the month. There are four 5th weekends per year.
When it comes to a child custody arrangement, there is no “one size fits all”. Parents can customize their child custody schedule to the unique needs and circumstances of their family. We recommend checking out Custody XChange for dozens of additional child custody schedule examples.
What Should A Child Custody Agreement Include?
All child custody agreements should include the following:
- A classification of the type of custody arrangement each parent will have
- A residential schedule: This is the basic schedule that will be implemented throughout the year. It outlines when the child is with each parent during regular weeks/weekends.
- A holiday schedule: This schedule outlines where the child will spend their time when on holidays, school breaks, vacations, or for other special occasions.
- Details surrounding pick-up and drop-offs to and from the parental homes
- Details regarding religion (if any), education and extracurricular activities
- Methods of dispute resolution
- Methods for modifying the custody arrangement
- Response time (how much time does one parent need to allow to pass after contacting the parent before they can act alone)
If Your Child Custody Case Needs to Go to Court
Sometimes court is the only option. If your case does go to court, it is important to have a competent and experienced child custody attorney by your side to argue your case.
Fighting for custody is incredibly stressful on a parent, and can take a toll. I have seen many well intentioned parents make critical mistakes due to this stress. Below are 5 common mistakes that you do not want to make if you are in the middle of a child custody dispute.
Mistake #1: Put Your Kids in the Middle of the Mess
Court consequences aside, child custody battles can be incredibly stressful on your children. Remember, your kids are watching and listening to how you talk about your ex. Put aside your negative feelings and model healthy behavior and conflict resolution. Your kids need to understand that they are not the cause or reason for the dispute. Not only is it the right thing to do, but judges do not look favorably on those who use their kids to get even or use them to pass mean messages back and forth.
Mistake #2: Post On Social Media About Your Case
Don’t air out your qualms about your ex online. Words you write in anger or sarcasm can be interpreted as a threat or abuse and also be used to discredit you in court. So can posting “the truth”, whatever your version of the truth is. Some of my clients have said, “but my account is private, I only allow my friends to follow me!” That may be the case, but chances are, you share at least one mutual friend with your spouse, and screenshots of your post can be sent in a matter of seconds.
Mistake #3: Lose Your Temper
Anger is a normal emotion to feel when fighting for custody of your children. Allow yourself to feel angry, but don’t let your anger out in ways that are going to hurt your case. If your ex gets you to lose your cool, they have major leverage (as well as control over you and your emotions). As mentioned above, watch what you say not only to others but also online. Any type of threat made, even if it is not meant literally, can be weaponized against you in court.
Mistake #4: Poor Documentation
You already have enough on your plate with a divorce, so why do you need to prioritize keeping good records? Every conversation that you have with your ex could impact the case in big ways. Communication via email and text is easiest to present in court, but even journal entries can be used. Documented communication is your evidence. Consider using family communication tools like OurFamilyWizard or AppClose; they make record-keeping much easier.
Mistake #5: Refuse Court Orders
One of the biggest mistakes that you could make is to fail to comply with court orders or a court approved agreement (even if it is a temporary agreement). You might not agree with the visitation schedule, and might even question your ex’s ability to parent, but if you do not honor the order you will be found in contempt of court. This type of stain does not come out easily. If you disagree with the order or agreement, talk to your attorney. They will be able to help you put together a plan to go back to court and change the order.
My Top Child Custody Advice
If you are reading this guide, there is probably nothing more important to you than your relationship with your child. You want to ensure that your relationship remains strong and intact.
For this reason, navigating child custody can be one of the most stressful aspects of a divorce. Here is the top advice I give to my child custody clients.
Prioritize Self Care
Just like in an airplane emergency, it is important that you first secure your own oxygen mask before you help others. Go to therapy, exercise, eat right, pursue a new hobby and take care of yourself. Prioritizing your mental and physical well being will help you to ultimately be a better parent and navigate the stress of divorce.
Don’t Use Your Children
If you want your divorce to be as painless as possible for your children, one of the number one things you can do is to talk respectfully about and towards your ex. This does not mean you have to like them. It does mean, however, that you have to set aside some of your pride for the benefit of your child.
Whether you like it or not, your ex is your child’s parent. And unless there is abuse involved, your child is entitled to have a relationship with them. Don’t taint that relationship; it will only hurt your child.
What if your ex is not willing to meet in the middle and work together to respectfully co-parent your child? First, make sure to communicate to your kid that they are not the cause or the reason for your dispute with your ex. Use this as an opportunity to model healthy behavior and conflict resolution. And remember, in a custody battle, the court’s number one priority is the well being of the child. Courts do not look favorably on parents who attempt to use their children to get even with the other, or who try to put their children in the middle of the mess.
Hire Qualified Legal Representation
When your decision-making power and time with your kids is at stake, you do not want to rely on your own legal know-how. A family law attorney will help you to protect your parental rights and make your case. Even if you do not go to court, a family law attorney will help to ensure that the child custody agreement that you craft is legally sound and will protect your parental rights for the long haul.
Remember the Big Picture
The best interests of the child are always the court’s top priority, and should be yours, too. Everything you do or say about child custody, especially when addressing the court in papers you file and information you give the judge, should be in relation to how it impacts the child’s best interests. That includes what you say to and about the other parent.
Too many people want to talk about what is fair to them. For example, “I’m an involved parent, so it’s only fair that I have equal time with my child.” This may be true, but it is focused on you, not your child. The judge will notice this, whether you put it in your court papers or you say it to the other parent (who will then attach that email or text message to their court papers to show you are focused on yourself instead of your child). You can say the same thing above in a way that focuses on your child, like this, “It’s important for our child to have equal time with both parents to support our bonds as mother and father. We should both have equal influence in their life to help them grow and thrive.”
While the child’s best interests are the court’s top priority, it’s not the only priority. Parental rights are also important. An optimal child custody arrangement will put the child’s best interest as the top priority while balancing the parents needs and rights.
Author: Stephen L. Cawelti is a board certified family law attorney who has specialized in child custody since 2006 in California. He was voted by Pasadena Magazine as one of the “Top Family Law Attorneys” in LA for 7 years in a row and named a “Rising Star” by SuperLawyers.