Understanding The Divorce Process, and The Legal Definitions of Custody

A period of separation can be a trying time for a couple, but it can also cause complications in the family dynamic if there are children involved. When separating, it is imperative that the parents devise a custody/visitation arrangement, also called a "parenting plan". Custody of a child involves decisions of who the child will live with as well as who will be the primary decision maker regarding the child's health, education, and future. Ideally, both parents can come to an agreement on how to divvy up custody; with the approval of the judge, this plan can effectively and immediately be implemented. However, in many cases the parents cannot agree with one another's terms and a mediator is brought in to assist in the proceedings.



For the majority of cases, one to two mediation sessions will resolve the issues surrounding the proposed parenting plan. It is important to understand that a mediator will not act as the arbiter in your custody case---that is the role of a judge; additionally, the term 'mediator' is not synonymous with 'counselor'. Though, many mediators hold a master's degree in counseling or social work, their role in custody cases is to help both parents come to an agreement regarding the welfare of the child. The mediator is a neutral party who will illuminate various options concerning visitation and act as a support for the parties involved.



Mediators are knowledgeable about the judicial system of the state where they practice. They can answer any questions you may have regarding the custody process. They will work with the parents to resolve every issue pursuant to the parental custody agreement--right down to the child's method of transportation to and from each parent's home.



If the mediation process does not end in an agreement between the parents, some counties allow the mediator to make a recommendation for the judge's consideration. Other counties hold that the subject matter discussed in mediation is completely confidential. However, if your mediator hears evidence of, or is suspicious of child abuse, the mediator must report it to the judge. Mediators are required by law to do so.



If the mediation process does not progress smoothly, then there will be a court hearing or settlement conference with the judge. During this process, the judge will make decisions upon all issues, which could not be resolved during mediation. These decisions commonly include matters of custody and visitation rights, but it can also involve the request of a psychiatric evaluation of either party.



Many decisions regarding the welfare of your child will be decided in the court hearing. The major issue in most divorce situations is usually that of custody. In some cases, a sole custody order will be granted.



There are three types of sole custody orders. Exclusive custody means that one parent holds primary physical custody; this parent has the right to make judgments regarding the child's health, education, and residence. The second type is sole legal custody wherein one parent holds the decision-making powers regarding health and education, but does not control the child's residence. The opposite of legal custody is sole physical custody; in this type of custody, the child will live with the primary parent and the secondary parent will have visitation rights, which are subject to the decisions of the primary parent. In this type of custody, the primary parent cannot make decisions regarding the child's health, safety, and education without the permission of the other parent.



The other types of custody fall under the heading of joint custody. With pure joint custody, parents collaborate on the methods they will use to rear the child and the child's residence is shared between the two of them. With joint legal custody, both parents will share in the decisions regarding the child's education, health, and safety. The third type is joint physical custody wherein the child will divide his/her residency between the two parents. This does not mean that the residency will be equally shared, however it does stipulate that the child must spend a considerable amount of time with both parents. Divided custody stipulates that both parents will retain custodial rights for finite periods; for example, if there are two children in question, then the son might stay with the mother for a period of time and the daughter will live with the father during that same period. In this situation, visitation rights are still available for the non-custodial parent.



In unique situations, the judge may find that neither parent is fit to have custody of the child in question. In such circumstances, he may grant custody to someone other than the child's parents. In non-parent custody, the guardian will make decisions regarding the child's health and well being, but the parents will retain some visitation rights.



When deciding upon the custody of a child, the judge's main concern is the welfare of the child. That said, the judge will only consider a parent's emotions, opinions, and financial background, so much as these factors affect the child's best interests. Thus, there are many factors that may influence a judge's decision. The judge will first consider the child's health and safety; once that factor has been taken into consideration, the judge will also examine whether either parent has displayed a history of physical abuse. The judge will often require evidence of abuse in the forms of a police report or feedback from child protective services.



The third factor in the determination of custody is that of violent crime. For example, unless the judge decides that there is no significant risk for the child, California law finds that a parent who has been convicted or is registered as a sex offender is not a fit parent. Thus, those who fall under this category will be subject to supervised visits only. With other violent crimes, a parent can be denied all visitation and custody rights. This rule applies if one parent is convicted of the first-degree murder of the other parent or if the child is the result of a rape.



Other considerations include that of drug or alcohol abuse and stability of the environment. It is imperative that the child be reared in an environment where he/she can feel safe; therefore, a parent's history with illicit drugs can factor into the custody hearing. Also, any other circumstances that may negatively affect the stability of the child's environment will be examined.



Lastly, sibling separation and the child's wishes are considered. Generally, California courts frown upon splitting up siblings as it may negatively impact their emotional well being. Also, any child who is of age to reasonably consider which parent they would prefer to live with is allowed to give the court feedback on the custody case.



It is important to note that the decisions made during a custody hearing are malleable. If circumstances amongst the parents change, then there may be a modification made to the custody agreement. Some examples of circumstances that may later affect custody include: a residency change, evidence of abuse, or the child wishes to decrease/increase visitation with a specific parent.



Divorces are difficult, and the added concerns of child custody, make the process even more frightening to the person who does not know what they should expect from the process. With the right information at your disposal, you will be better prepared to complete the process without fear of getting a raw deal. It is our hope that with this information, you can enter into divorce proceedings, armed with the information that will help you to get a fair judgment from the legal system.



Amerion Abler writes about divorce & child custody. If you are a Orange County California resident, seeking a divorce in California, then Dishon & Block, APC, Attorneys At Law will help protect your interests. Their California family law attorneys have helped many people just like you. Visit: www.cadivorce.com/