When a couple separates, or in the case of unmarried parents, the parties need to decide who will have “custody” of the children and how each parent will be involved in their children’s care. In order to understand how custody and visitation relate, you need to have an understanding of certain terminology:
The parties can have several different arrangements regarding legal and physical custody:
Some examples of the decisions or choices parents with legal custody can make are school, childcare, religious activities, mental health needs, physical health needs (except in emergency situations), sports, summer camp, vacation, extracurricular activities, travel or where to live.
Visitation is based on the amount of time each parent will have the children. In California, either parent can have custody, or the parents can share custody. The judge makes the final decision about custody and visitation but usually will approve the arrangement that both parents agree on. If the parents can’t agree, the judge will make a decision at a court hearing. The judge will not usually make a decision about custody/visitation until after the parents have met with a mediator.
In today’s society, courts do not automatically give custody preference to a mother or father based on the age or sex of the children. Also, the court cannot deny a parent’s right to custody or visitation merely because the parties were never married, or because a parent has a physical disability, different lifestyle, religious belief or sexual orientation.
If the parents cannot agree on a change, one parent can ask the court for a change. This is done through a motion process that requires a court hearing and sometimes “mediation.” The parent seeking the modification will need to present facts sufficient to the court to prove that there is a change in circumstances, potential harm to the children or other good reason to change the order. Both parents will meet with an assigned mediator to talk about why the order should be changed prior to the scheduled hearing.