Divorce Law: What's a Custody Plan?

    Parents who separate should have a custody and visitation or parenting plan for deciding how they will share parenting responsibilities. A custody and visitation plan must be in writing and signed by both parties and a judge to be enforceable. 

While it is difficult to make generalizations about the suitability of various parenting plans many experts agree that during the first years of life, it is important for young children to develop an attachment to a primary caretaker and recommend frequent but non-overnight visitation with the non-custodial parent for short periods of time. As the children grow older and are better able to develop multiple attachments longer periods of continuous overnight visitation is encouraged. 

A first step in developing a plan is charting out the schedules of the children and both parents. This will help you make realistic choices based upon practical considerations. Take a calendar and chart out in a colored pen the activities of each of your children (e.g. when they leave and return from school/day care each day, when they go to different activities such as music lessons, when they have vacations etc.) Next, take a different colored pen and chart your activities and commitments. Include when you go to and return from work, go to meetings, go out with friends etc. With another colored pen do the same for the other parent. You should then compare both parents’ plans to see if there is any common ground.

When parents decide custody and visitation they should develop a plan around the needs and best interests of their children and not their needs. In other words, they should adjust the plan to the children, not the children to the plan. Parents should be looking at their children's need for love, emotional support and security. Parents should take into account their children's age, personality and experiences. Children will generally be better off when both parents are involved and participating in their upbringing.

Next you should consider who has historically been responsible for different commitments with the children and which parent is practically able to fulfill them in the future. Questions you should consider are:

• Who do the children turn to when they have a problem or need to share their feelings?
• Who does homework with the children?
• What do the children do on the weekends?
• Do the children spend time with relatives and who takes them?
• Who takes the children to medical appointments or picks them up in when they are sick?
• Who provides the children’s physical care, such as bathing, changing diapers, arranging for sitters, haircuts, feeding?
• How do you and your spouse discipline the children and set structure for them?
• What kind of personal attention do each of you give to the children, such as teaching problem solving, reading, playing together, sharing activities?
• Who is responsible for the children’s social activities, such as arranging birthdays, play dates, trick or treating, taking class trips, games, lessons, school plays etc.? 

JOINT CUSTODY:

For older children one of the key issues is whether a joint custody is more appropriate than an arrangement where the non-custodial parent has alternate weekends and one or two overnights during the week. The answer will be different for each family. The parent’s relationship and their level of cooperation and also the children’s preferences can be as important as how much time the children physically spend with each parent. The Family Code in California provides that any parental plan must encourage frequent and continuing contact although it does not specify a particular plan.


IF YOU CAN"T AGREE: 

If parents cannot agree on custody and visitation on their own they may go to court and ask a judge for a temporary order. In California, the court will first send them to conciliation court where a trained mediator tries to help the parties agree. In Los Angeles, conciliation services are free. An appointment can be made by calling conciliation services at (213) 974-5524.

If the parties still cannot agree, the court will make a temporary custody and visitation order that is in the best interests of the children. The temporary order will continue until the parties can reach an agreement or until custody and visitation is resolved after a trial. If parents cannot agree on custody and visitation, they can also ask the court to appoint a mental health expert such as a psychologist to carry out a custody evaluation. A list of custody evaluators can be found at the Los Angeles court's web site at www.lasuperiorcourt.org.


The Legal Aspects of a Plan

Any parenting plan will have to make provision for who gets legal custody and who gets physical custody of the children. These are the terms that are used in agreements.

Legal custody: means which parent gets to make important decisions about the children's education, religious upbringing, medical treatment and other legal decisions. If one parent gets to make these decisions they have sole legal custody. If both parents get to make those decisions together, they have joint legal custody. It is rare for one parent to be granted sole legal custody unless there are issues of domestic violence and substance abuse or there is a history of the parents being unable to communicate. In deciding on issues relating to legal custody, form "Joint Legal Custody Attachment" FL-341 (E) which has been approved by the Judicial Council of California is helpful. It can be found at www.courtinfo.ca.gov/forms/

Physical custody: means who the children live with on a daily basis. A parent has sole physical custody if the primary residence of the child is with that parent. The non-custodial parent then has visitation rights. The parents have joint physical custody if the children live with each parent for significant periods of time during the week. 

A custody and visitation plan should be consistent and detailed. It should spell out who gets the children when and where in enough detail so that it is easy to understand and enforce. Important questions are who has the children in the week and on the weekends?  Who transports the children for exchanges and to activities? Who gets the children on holidays and vacations?  In California, the Judicial Counsel has developed forms to be used when requesting custody and visitation. The forms "Child Custody and Visitation Attachment FL-311 and "Children's Holiday Schedule Attachment” can be found at www.courtinfo.ca.gov/forms and are helpful in developing plans. 

Warren R. Shiell has practiced law for more than 15 years in the United Kingdom, New York and California. His firm in Beverly Hills, Calif., is devoted exclusively to family law issues. His web site is http://la-familylaw.com/.