There are two kinds of custody, legal custody and physical custody.
Legal custody is the right and responsibility a parent has regarding the right to make decisions regarding a child’s health, education and welfare. Some of the legal custody decisions include the right to select the health care providers, regular childcare providers, schools, and counselors for the child. Many times the Court awards joint legal custody to both parents, however, in cases where parents have difficulty co-parenting, that effects legal custody decisions regarding a child, or when restraining orders are an issue, the court may order that one parent have sole legal custody.
Physical custody means the child resides with the parent who has physical custody. In many cases, the Court awards “joint physical custody.” This does not mean that the parents share the child on an equal basis, simply that the child resides in both parents’ homes. A proper physical custody plan should set forth the days the child will be with each parent, the exchange time and location for exchanges, a holiday plan, and sometimes a specified number of vacation periods for each parent. In the event a physical custody plan provides for a child to reside more with one parent than another, that parent is typically considered the primary custodial parent. In cases where domestic violence, child abuse, or drug/alcohol abuse are a concern, the Court may order sole physical custody to one parent, in these cases the Court may also order supervised visitation and/or supervised exchanges of the children at a supervising agency.
It is required when a party brings the issue of child custody or visitation, or modification of child custody and visitation before the Court, for the parents to attend mediation with Family Court Services. Fresno County is a non-recommending county and on a tiered mediation system. The children do not always participate in the mediation process.
When a Request for Order is filed regarding child custody and visitation issues, the matter is set on a Readiness calendar. At the Readiness hearing the Court will schedule the parties to attend an orientation, Tier I mediation, and a return to Court date. All issues before the Court are continued to the return to Court date.
Orientation is held on Friday afternoons at 1:30 p.m. in the B.F. Sisk Courthouse. Mediation is held within a short period of time following orientation. The return to Court date is typically a few weeks after mediation.
At the time of the return to Court date, Family Court Services will notify the Court if the parties reached an agreement at the time of mediation. If no agreement is reached, Family Court Services will not provide the Court with any information or recommendation, and will inform the Court that no agreement was reached, and generally identify issues of contention. If an agreement, or partial agreement is reached, Family Court Services will provide the Court with a proposed Order Re: Child Custody and Visitation as to the agreement or partial agreement reached. The Court will make orders on the issues before the Court that date. If there is not an agreement on custody/visitation issues, the Court may make an agreement, or refer the parties back to Family Court Services for Tier II mediation. A Tier II Mediation is a fact finding mediation in which the Court may request specific questions be answered, documents or other information be supplied to Family Court Services at the time of mediation, and for the mediator to address specific issues in order to report to the Court.
The Court will prepare a Minute Order following the hearing, and instruct of the parties or their attorney to prepare a formal Order After Hearing. The Order After Hearing is to be approved by the opposing party, unless the Court specifies otherwise, and filed with the Court. After filing, the Order After Hearing is to be served on the opposing party, or their attorney if the party is represented.
In the event a Tier II mediation is ordered, the parties will attend this mediation, which may or may not involve the children being interviewed. Family Court Services will prepare a Tier II Fact Finding Mediation Summary to the Court at the time of the return hearing. The Court may make orders at the time of the hearing, or refer the matter to Family Court Services for Tier III mediation. In the event the parties reach an agreement, or partial agreement, Family Court Services will prepare a proposed Order Re: Child Custody and Visitation and submit it to the Court.
At a Tier III mediation the children are typically interviewed and a recommendation is prepared by the mediator and submitted to the Court at the time of the return hearing. This recommendation is based on the agreement of the parties, or if no agreement, the best interest of the children. At the time of the return hearing the Court may make orders, or set the matter for a contested hearing.
There are many factors on which custody and visitation orders are based. Family Code Section 3040 provides as follows regarding the preference for custody:(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020:
- To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020, and shall not prefer a parent as custodian because of that parent’s sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order.
- If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.
- To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
- The immigration status of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody under subdivision (a).
- This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.
- In cases where a child has more than two parents, the court shall allocate custody and visitation among the parents based on the best interest of the child, including, but not limited to, addressing the child’s need for continuity and stability by preserving established patterns of care and emotional bonds. The court may order that not all parents share legal or physical custody of the child if the court finds that it would not be in the best interest of the child as provided in Sections 3011 and 3020.
In the event that domestic violence is an issue in the matter, this can have an impact on the Court making custody and visitation orders. Family Code Section 3044 provides as follows:
- Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.
- In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors:
- Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part.
- Whether the perpetrator has successfully completed a batterer’ s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.
- Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate.
- Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate.
- Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole.
- Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.
- Whether the perpetrator of domestic violence has committed any further acts of domestic violence.
- For purposes of this section, a person has “perpetrated domestic violence” when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child’s siblings.
- (1) For purposes of this section, the requirement of a finding by the court shall be satisfied by, among other things, and not limited to, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 of, or Section 261, 262, 273.5, 422, or 646.9 of, the Penal Code. (2) The requirement of a finding by the court shall also be satisfied if any court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous five years.
- When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties.
- In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case.
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