Child Custody FAQ
Common Questions About Child Custody
If we have joint legal custody, do we have to agree on every decision?
What if the child is not feeling well when it is time to change homes?
What happens if I do not respond to the papers I received asking for a custody and visitation order?
Can children, relatives, lawyers, or others be part of the mediation?
What happens in mediation if 1 or both of us have lawyers?
What is the difference between an agreement we both write up and sign and a court order or judgment?
How do I complain about my mediator or the evaluator?
Can one parent move away with the children?
How can I stay close to my children if they move away with the other parent?
What if the parents live in different states?
What if the parents live in different countries?
Can a parent move away with the children without permission from the other parent?
I am worried the other parent may kidnap my child. What can I do?
The other parent kidnapped our child and left the country. What can I do?
Q: If we have joint legal custody, do we have to agree on every decision?
A: No. With joint legal custody both parents have the right to make decisions and either parent can make a decision alone. But to avoid having problems and ending up back in court, both parents should communicate with each other and cooperate in making decisions together.
Q: If we have joint physical custody, do our children have to spend exactly half the time with each of the parents?
A: No. If there is joint physical custody, usually the children spend a little more time with 1 parent than the other because it is too hard to split the time exactly in half. When 1 parent has the child more than half of the time, then that parent is sometimes called the “primary custodial parent.”
Q: I do not want my child to change houses every day. But I want to see my child as much as possible. What is the best schedule?
A: We do not know how long young children can go without seeing either parent, how many transitions children can handle, or how long children should stay in each household. We do know that children can get attached to caregivers when they have good relationships that are consistent over time.
In many instances, it may make sense for infants and toddlers to be able to see each parent regularly, especially if a child is safe with either parent. Younger children’s concept of time is different from that of older children, and they often need more consistency. It is generally a good idea to have a regular schedule and stick to it. Most children benefit from having a routine they can count on.
When you make a schedule, think about the quality of the relationships. Not just the relationship between the children and each parent, but also between the parents and between the children and any other caregivers.A: We do not know how long young children can go without seeing either parent, how many transitions children can handle, or how long children should stay in each household. We do know that children can get attached to caregivers when they have good relationships that are consistent over time.
Q: What if the child is not feeling well when it is time to change homes?
A: It is hard when a child is not feeling well. If it is time for the child to go from 1 home to another, should the change be put off? Unfortunately, there are no easy answers to this question. Clearly, the age of the child and the seriousness of the illness need to be taken into account. Also, the distance between the 2 homes will be a major factor in decision making. Some parents use the standard that if the child is well enough to go to school, he or she is well enough to move from 1 home to another. However, deciding whether the child should go to school or not is often difficult, so that standard is not too helpful.
Here are some considerations:
- Both parents have not just the right, but an obligation to care for a child while the child is ill. It is unreasonable to expect the primary custodial parent to take over all care of a sick child, just as it is unreasonable to deny parenting time due to minor illnesses.
- The child’s feelings count. It is typical for a sick child to be cranky and unhappy; moving him or her to the other home may only intensify these feelings. On the other hand, children are prone to “cabin fever” just like adults. A change of environment may very well make a child feel better and help take his or her mind off their illness.
- When parents share care of an ill child, clear communication is crucial. If the child is on any kind of medication, knowing when the child took his or her last dose or when the next dose should be given is important information that parents should convey when exchanging the child. Both parents may want to keep a simple log of what medication the child is taking and what the medication schedule is.
If parenting time is missed due to sickness, the noncustodial parent probably may want to make the time up. Reasonable “illness contingencies” may be written into every parenting plan to provide guidance for these situations. When adding these contingencies to your parenting plan, you need to take into account that each parent’s situation (travel, work schedules, etc.) is different.
Q: What happens if I do not respond to the papers I received asking for a custody and visitation order?
A: If you do not respond, you should still show up at the court hearing. Or if there is a mediation scheduled before your court hearing, make sure you go to the mediation. If you go to the hearing without filing a response, you may be able to ask for more time to file a response and explain to the judge the reason why you were not able to file a response in time.
Q: How long does mediation take?
A: Court-ordered child custody mediation sessions can last for different amounts of time in each court. Some courts are only able to offer parents 1-hour appointments. Others can work with parents during 1 or more appointments that last 2 to 3 hours each. Because each court has different resources available to help parents, this is an important question to ask when you set up your mediation appointment.
If you want more time with a mediator, you can contact a mediator in the community who can spend more time. Private mediators often work with parents for 4 to 6 hours over the course of 1 or more appointments. Working with a private mediator will cost you money, but it can be a valuable way to resolve your differences and work out a parenting plan that will support your children and work well for your family’s situation.
Q: Can children, relatives, lawyers, or others be part of the mediation?
A: Court-ordered child custody mediation is generally for parents only. Two important exceptions to this basic rule are:
- Meeting separately and domestic violence support persons
If there is a restraining order or a history of domestic violence, or if you are concerned about meeting jointly, you can ask the mediator to meet with you and the other parent at separate times. You can also ask to have a domestic violence support person go to mediation with you. - Interpreters
If 1 or both parents are not comfortable mediating in spoken English, then they may ask to bring an interpreter to mediation. Although some courts may be able to offer trained interpreters to parties during mediation, most cannot. For this reason, it is VERY important to know that it is NOT a good idea to have your children serve as your interpreter in mediation. It is also important that the person you bring to interpret for you in mediation must be ready to translate everything that is said by everyone, as closely as possible, without adding new information or his or her own comments in the process. If you do not know how to find a trained interpreter, you can ask the mediator to help you. You will be responsible to pay any costs associated with hiring an interpreter to help you during mediation.
Also, in some cases, mediators may want to interview your children. Ask your mediator what they do in your court.
Q: What happens in mediation if 1 or both of us have lawyers?
A: Mediation can still happen, and in some cases, the lawyer will participate with you and the mediator. You and your lawyer can talk with the mediator about this. But you and your lawyer need to decide if your lawyer will go to the mediation, and then be sure to tell the mediator and other parent whether the lawyer will be coming. Some courts may not allow your lawyer in the mediation, so ask your mediator about the rules in your court.
It could be very helpful to you to get legal advice before or after the mediation. It will help you understand your legal rights and responsibilities and develop options for reaching an agreement. So even if you are representing yourself in the court case, consider talking with a lawyer about the issues and the possible agreements you are reaching in mediation.
Q: What is the difference between an agreement we both write up and sign and a court order or judgment?
A: A written agreement signed by 2 or more parties becomes a binding, enforceable agreement. However, a court cannot enforce such an agreement until it has become an order of the court called a “judgment.” A court may create a judgment by merging and incorporating the provisions of the agreement into the judgment. The judgment then replaces the agreement and can be enforced by the court if either side violates it.
Q: How do I complain about my mediator or the evaluator?
A: First, if you have a complaint against a mediator or evaluator with Family Court Services, talk to the director of Family Court Services to find out how to make a complaint. Follow the procedures for filing a complaint in your court. If you are not happy with the result after you file the complaint, you can explain your complaint to the judge at the time of your hearing.
Q: Can one parent move away with the children?
A: The law on these types of cases is very complicated and changing. You should talk to a lawyer if you want to move away with your children or if you are worried that the other parent will move away with your children.
Generally, a parent who has a permanent order for sole physical custody (also called “primary physical custody”) can move away with the children, unless the other parent can show that the move would harm the children. But it is not always clear whether a custody order is permanent or temporary, so what the law requires may be different in your case. Talk to a lawyer to make sure you understand how the law applies to your specific circumstances.
If the parents have joint physical custody of the children and 1 parent does not want the children to move, the parent that wants to move with the children must show the court that the move is in the best interest of the children.
Keep in mind that, although the physical custody label (“joint” or “sole”) you agree to in your parenting agreement is important, if there is a dispute, the court will usually look at the actual parenting schedule at the time of the move, rather than rely on the schedule the parents put in their parenting agreement.
If you are worried that the other parent may want to move away with your children, or if you think you may want to move away with the children, talk to a lawyer before you make a parenting plan to make sure your plan protects your rights as much as possible.
Q: How can I stay close to my children if they move away with the other parent?
A: You can make a parenting plan that takes into consideration that your children are moving away and changes the visitation so that you can still have quality time with your children.
Q: What happens if I want to travel out of state or the country with my children but I cannot find the other parent to get permission?
A: Usually, you need the other parent’s permission to travel out of state with your children, especially if you want to leave the country or if, because of your traveling with your children, the other parent will miss his or her court-ordered visitation. If you cannot find the other parent, you will need to go to court and ask the judge for permission to let you leave without the other parent’s permission. You will have to look for the other parent and tell the judge everything you tried to find him or her.
You should also closely look at your existing custody and visitation court order and make sure that there are no restrictions on you leaving the state or your country with the children. If there are limits on whether you can take your children outside of your country or state, you usually need a court order giving you special permission to travel.
If the judge gives you an order letting you travel, make sure you get it in writing. Also make sure the order has everything you need, including the dates of travel and any other information so that you can travel with your children safely. Carry a copy of the order on you everywhere you go when you travel. You may need to show it to the border patrol, airport staff, or any official that asks to see it.
Q: What if the parents live in different states?
A: If you and the other parent live in different states and you are trying to resolve custody issues, you should work with lawyers who have experience with these types of cases.
All states of the United States and the District of Columbia have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This law sets standards for when a court may make a custody decision and when a court must accept an existing decision from another state.
In general, a state may make a custody decision about a child if 1 of the following is true:
- The state is the child’s “home” state. This means the child has lived in the state for the last 6 months, or was living in the state but is not there because a parent took the child or kept him or her out of the state.
- The child has significant connections with people in the state, such as teachers, doctors, and grandparents. It can be proven that the child’s care, protection, training, and personal relationships are based there.
- The child is in the state and either has been abandoned or is in danger of being abused or neglected if sent back to the other state.
- No other state can meet 1 of the 3 tests listed above, or a state can meet at least 1 of the tests but has declined to make a custody decision.
A custody decision can only be made in 1 state. Once the first state makes a custody decision, another state cannot make another “initial” decision or modify the existing order.
Having the same law in all states helps achieve consistency in the treatment of custody decisions. It also helps solve many of the problems created by kidnapping or disagreements over custody between parents living in different states.
Q: What if the parents live in different countries?
A: If you and the other parent live in different countries and you are trying to resolve custody issues, you should work with lawyers who have experience with these types of cases.
Q: Can a parent move away with the children without permission from the other parent?
A: The law on these types of cases is very complicated and changing. You should talk to a lawyer if you are worried that the other parent will move away with your children.
Generally, a parent who has a permanent order for sole physical custody (also called “primary physical custody”) can move away with the children, unless the other parent can show that the move would harm the children. But it is not always clear whether a custody order is permanent or temporary, so what the law requires may be different in your case. Talk to a lawyer to make sure you understand how the law applies to your specific circumstances.
If the parents have joint physical custody of the children and 1 parent does not want the children to move, the parent that wants to move with the children must show the court that the move is in the best interest of the children.
Keep in mind that, although the physical custody label (“joint” or “sole”) you agree to in your parenting agreement is important, if there is a dispute, the court will usually look at the actual parenting schedule at the time of the move, rather than rely on the schedule the parents put in their parenting agreement.
If you are worried that the other parent may want to move away with your children, talk to a lawyer before you make a parenting plan to make sure your plan protects your rights as much as possible.
Q: I am worried the other parent may kidnap my child. What can I do?
A: The U.S. Department of State has a list of precautions that any parent should take if they are worried about the possibility of child abduction:
- Keep a list of the addresses and telephone numbers of the other parent’s relatives, friends, and business associates both here and abroad;
- Keep a record of important information about the other parent, including physical description; passport, social security, bank account, and driver’s license numbers; and vehicle description and plate number;
- Keep a written description of your children, including hair and eye color, height, weight, fingerprints, and any special physical characteristics; and
- Take full-face color photographs or videos of your children every 6 months — a recent photo of the other parent may also be useful. If your children are abducted, this information could be vital in locating them.
In addition, the National Center for Missing and Exploited Children, at telephone number 1-800-843-5678, suggests that you teach your children to use the telephone, memorize your home phone number, and practice making collect calls, and that you instruct them to call home immediately if anything unusual happens. Discuss possible plans of action with your children in the case of abduction.
Most important, if you feel your children are vulnerable to abduction, talk to a lawyer for legal advice. Do not just tell a friend or relative about your fears.
Q: The other parent kidnapped our child and left the country. What can I do?
A: When a child who is a U.S. citizen is kidnapped and taken to another country, the State Department’s Office of Children’s Issues works with U.S. embassies and consulates throughout the world to help the child and the parent looking for the child. But even when a child is taken across international borders, child custody disputes are private legal matters between the parents, and the State Department has little or no power.
If your child is at risk of being abducted by the other parent, it is very important that you have a clear custody order that specifies what the other parent can and cannot do in terms of traveling with your child. But even if you have a court order, U.S. laws and court orders are not usually recognized in foreign countries and therefore are not directly enforceable abroad.
Fortunately, the Hague Convention, which has been signed by many countries, is an international treaty that applies to child abductions. The countries that are parties to the convention have agreed that, with a few exceptions, a child who is a resident in 1 country that is a party to the convention and who is removed to another country that is also a party to the convention against a custody and visitation order must be promptly returned to the country of residence. Click for information on which countries have signed this agreement.
The Hague Convention and cases of international abduction are very complicated. There is information online to help you, but if you can, talk to a lawyer who has a lot of experience with international abduction cases. Your local District Attorney’s Office may also have a Child Abduction and Recovery Unit that can help you or give you resources in your area.
Here are some websites with very helpful and complete information on child abduction:
- The U.S. Department of State’s Office of Children’s Issues website
Provides information about international abduction. This site provides information on how to look for a child abroad, how to use the criminal justice system, and how to invoke the Hague Convention by submitting abduction applications, as well as information about the law. - A Family Resource Guide on International Parental Kidnapping
A guide from the Office of Juvenile Justice and Delinquency Prevention of the U.S. Department of Justice, provides detailed information on prevention and searching for your child, checklists for what to do in case of kidnapping, resources, and much more.
Q: Are my court records public?
A: For most cases, yes. All court files, including any orders of the court, become public records, meaning they are not private. Any person can go to the clerk of the court and request to see any case file. There are 3 types of exceptions. One is when the type of case itself is confidential, like a juvenile case or an adoption. Those cases are confidential and the general public does not have access to them.
Another exception is the confidential portion of a family law file. That is where child custody evaluations and recommendations are kept and only certain people are allowed access (including parties and their lawyers).
The third exception is when the parties request (and the court grants) an order that a certain document or a file be sealed or remain confidential. Then, only the court, the parties, and the parties’ lawyers may view that document. Requests for sealing may be made for documents or files that contain highly sensitive or financial information of the parties.
If you are not sure if your court case, documents, or file are confidential, ask the court clerk.
Q: Is child support related to custody and visitation?
A: A child support order is separate from a child custody and visitation order. So you cannot refuse to let the other parent see the children just because he or she is not paying the child support he or she owes. And you cannot refuse to pay child support just because the other parent is not letting you see your children.
But child support and custody are related because the amount of time each parent spends with the children will affect the amount of child support.
CONTACT US
Contact the San Diego-based Family Attorneys at The Zarin Law Firm by calling (619) 800-4189 or emailing us at office@zarinlaw.com for help with your Child Custody & Visitation matter.
RELEVANT LINKS:
CHANGED CIRCUMSTANCES IN CUSTODY MODIFICATION CASES