San Jose Child Custody and Visitation Lawyer

Family law is probably the most complex legal area of the practice of law. Custody and visitation is indisputably the contested and emotional area of law that an attorney can practice law in.

The raising and care of children both during and after a divorce is an ongoing source of conflict for parents. What parents may consider as a termination of their marital status, the children regard and a collapse of the family. Because of this the children must be thought of as a primary concern by the parents as they will have no choice but to co-parent the children until the lives they have brought into being have turned 18 years old, and in some cases longer.

Custody and visitation orders are necessary and must address both physical custody, as well as legal custody, along with the rights and responsibilities regarding the day-to-day care and activities of their children as well as the legal rights and responsibilities associated with the child's upbringing. When parents agree to an arrangement this is preferred. However, where the parents are unable to come to an agreement and cooperate, the court determines the parental arrangement for them. It must be understood that The State of California does not subscribe to the “tender years doctrine.” The courts of The State of California no longer will unilaterally give mothers physical custody and fathers visitation rights, sometimes awarding joint legal custody of the children with the children residing with the mother. Today, the courts will place the children with the parent that has been the primary care giver, will look to the current custodial arrangement, and in the appropriate case determine that it is in the best interest of the children that they reside with the father, and reverse the roles of the parents. The courts encourage and in some cases require joint ongoing child rearing responsibilities, with the children residing where it is most practical and where they will flourish best. It must be remembered that it is what is in the best interest for the children, not what is in the best interest of the parents or the parents’ desires.

When custody and/or visitation is contested by the parents, most courts will require parents to participate in a mandatory mediation session. Mediation is an alternative dispute resolution process where divorcing couples work with a specially trained neutral third party to try and resolve some or all of their disagreements and reach an agreement if possible. However, if mediation is unsuccessful, there may or may not be a recommendation by the mediator, but after a request for a review or return from mediation, the court will determine custody. The courts of The State of California will reach their decisions about custody and visitation after considering what arrangement will serve the best interests of the child. If necessary the court may allow or may request on its own that a custody evaluation be performed by an outside expert to help them reach such a determination.

Standard visitation and custody orders allow a non-custodial parent to see the children one night a week, every other weekend and some portion of school and summer holidays. The holidays and summer visitation usually will alternate between the parents being determined if it is an odd or even numbered year. The Legislature of The State of California has determined that it is in the best interest of the children that frequent and continuing contacts be maintained with the non-custodial parent. As a result it is a duty that cannot be avoided that the custodial parent shall take all reasonable steps necessary to assure that all visitation orders are complied with. Failure or refusal to comply with visitation orders is grounds to cause the court to order a change of custody.

In order to change a court-ordered custody and visitation arrangement, the parent seeking the modification must show a substantial change in circumstances justifying the change. In order to prevent parents from forum shopping for a state that will provide them with a more favorable custody and visitation order, no state has the authority to enter a custody or visitation order unless the child which is subject to the order has resided legally in that state for a minimum of six (6) months or longer. This is otherwise known as “Home State Jurisdiction.”

Additional Considerations for Parents going through a Divorce are:

• What to Tell Your Children
• Making Changes Easier
• Child’s Best Interest
• High Conflict Parenting
• Long Distance Parenting

Contact San Jose Child Custody and Visitation Lawyer Merrisa L. Coleman-Bishop.