Amerion
Abler
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.
Article Directory: http://www.articlecube.com 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/
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