Child Custody

The fact that you are going through a divorce doesn’t mean that you should give up your relationship with your children. California family law reflects the policy that the children should have frequent and continuous contacts with both parents. Disputes over child custody start because one parent wants to keep the other away from the children. People get emotional when their spouses suggest that their time with the children should be limited. In some cases, limiting a parent’s time with the children may make sense. If domestic violence occurred in the family, then the top concern should be to protect the children from the abuser. There may be other legitimate reasons. However, if your case is not one of those cases, a proper custody and visitation order must be put in place to preserve your relationship with your children.

In an ideal world, parents should be able to come up with a custody and visitation plan without going to court. In an ideal world, people would also put the interests of their children ahead of their own. In the real world, this does not always happen. Custody and visitation is one of the most highly contested issues in divorce. When one parent tries to keep the other parent away from the children, both parents start fighting verbally and sometimes physically. Inevitably, the children know that there are problems at home. If child custody and visitation will be an issue in your divorce, it is important to keep things in perspective. Focus on being there for the children, reassure that you love them, and be the best parent you can be.

How The Court Decides Child Custody

In Santa Clara County, if you and your spouse cannot agree on custody and visitation of your minor children, you will have to go to court-ordered mediation first. The purpose of the mediation is to give you and your spouse an opportunity to discuss your disagreement over custody and visitation in a private setting without significant time constraints. You and your spouse will meet with a mediator who will attempt to get the two of you to agree on a custody and visitation schedule. If you reach an agreement in mediation, your agreement becomes the court order. If you do not reach an agreement in mediation, then the court will issue orders regarding custody and visitation.

​Securing a custody and visitation order is particularly important if you will be moving out of the house. In making custody determination, the court must consider the nature and amount of the child’s contact with both parents. If one parent is absent or moves out, the court must not consider the absence or the move in determining custody or visitation when the absence or the move is of short duration, or there was domestic violence. If you move out of the house without obtaining a custody and visitation order first, your spouse will control the playing field. Living with your spouse when you are planning to divorce may be difficult. However, before you move out, make sure that you get a custody order and a visitation schedule in place.

The cost of fighting for your rights must be balanced against future benefits. One of these benefits may be avoiding the cost in getting the court to undo what may already be in place. In matters of custody and visitation (and everything else in family law) it is important to do things right from the start. My office has obtained favorable results for parents in custody and visitation disputes. My office has secured visitation for parents who were accused of domestic violence and for parents with a restraining order already in place. I encourage you to consult my office to position your custody and visitation case the right way from the start.