Joint Legal Custody -- means that both parents share the right and responsibility to make decisions that relate to the child's health, education and welfare.

Sole Legal Custody -- means that one parent has both the right and the responsibility to make decisions relating to the child's health, education and welfare.

Joint Physical Custody -- means that each parent has "significant periods of physical custody". Joint physical custody must be shared in a way that assures the child "frequent and continuing contact" with both parents.

Sole Physical Custody -- means that a child resides with and is under the supervision of one parent, subject to the court's power to order visitation.

California law requires courts to give child custody first to "either parent according to the best interests of the child." If the court cannot decide based on that "best interest" test, then custody should be awarded to "the person or persons in whose home the child has been living in a wholesome and stable environment". In making a decision on custody the court can consider the wishes of a child who is "of sufficient age and capacity to reason" and make a preference. That age, as a rule of thumb, is 13 -- but the courts and mediators frequently consult the wishes of children substantially younger -- and give those wishes appropriate weight.

In making a determination of the "best interests" of the child for the purposes of awarding custody, the court shall consider any factors it finds relevant to the health, safety and welfare of the child. The case law shows a strong preference for maintaining a child's existing living situation. The California Supreme Court has specifically stated that "Regardless of how custody was originally decided, after the child has lived in one parent's home for a significant period, it surely remains 'undesirable' to uproot him from his established mode of living. A substantial change in his circumstances should ordinarily be disapproved." Because of this rule it is clear that the first parent who is able to establish an environment for the child will be in the best position to obtain permanent custody.

• No Preference for Either Gender: The court has the widest discretion to choose a parenting plan which is in the best interest of the child and is not to favor either parent based on that parent's gender.
• Frequent Contact: The parent who is better able to share the children with the other parent is one factor that the trial court is to consider in making an award "to either parent".

Before a contested custody or visitation case can go to hearing, the court must set the matter for mediation. Counties have different requirements that govern when and for how long the mediation sessions take place. In the Indio Branch the parents meet with the mediator for about an hour. Only the parents are allowed into the mediation -- no attorneys, in-laws or new mates.

The mediator must report any agreement the parties reach in mediation to their attorneys as soon as possible -- but before the agreement is reported to the court. Any agreement reached in this mediation can only deal with the custody and visitation of children. It cannot include issues relating to property, child support, or any other matters.

Each party is free to retain an independent psychiatrist to examine a child and evaluate the quality of the parent's relationship with the child. Such a psychiatrist may testify at the time of trial. The court has the authority to appoint a psychiatrist or psychologist to examine the parents and their children also. In that case, the cost of the expert's services will be apportioned between the parties. This type of investigation is based on Evidence Code Section 730 and is referred to as a "730 Evaluation". They customarilly take 2-3 months to complete and can cost between $1,000 to $5,000.

If there is already a custody order in place, a party seeking to change that decision must make a persuasive and substantial showing of a change of circumstances that warrants an alteration of custody for the best interests of the child. However, if no prior custody determination has been made -- or if the parties stipulated to the existing order -- the party seeking a change does not have to prove a change of circumstances.

Unless visitation would be detrimental to the best interests of the child, the court MUST order reasonable visitation when it awards custody to one parent instead of the other. The court may consider whether the minor's best interests require a third person to monitor that parent's visitation. The standard visitation schedule in the Indio Branch courthouse is alternate weekends from Friday afternoon to Sunday afternoon. In addition the noncustodial parent can have the child with him on alternate major holidays, some time at Christmas and Spring school holidays and a block of time in the summer. As much additional visitation can be obtained as the parties can agree upon informally between themselves.
The courts of appeal have decided cases in a variety of different visitation situations:

• Religious Issues: The court cannot prevent a noncustodial parent from discussing religion with his or her child or involving the child in the parent's religious activities absent a showing that such involvement would actually be harmful to the child.
• Overnight Visitors of the Opposite Sex: The court may not prevent a custodial parent from having overnight visitors of the opposite sex unless the welfare of the minor child is directly placed in jeopardy.
• Visitation with Homosexual Parent: In the absence of a showing of actual harm to the child the court may not restrict the visitation of a parent because of his or her homosexuality.

Current law provides three mechanisms by which grandparents may obtain court-ordered visitation with their grandchildren. Each applies in different situations, although they all have some overlapping provisions.

Grandparents may request visitation of their grandchildren even though the grandchildren's parents are still married. As you might expect, there are a variety of conditions:

• The visitation order must be in the child's best interest
• There must be a preexisting bond between the child and the grandparents that justifies the visitation
• The child's interest in visitation must outweigh the parents' right to exercise parental authority
• The court may order such visitation only if one or more of the following circumstances exist:
  • the parents are living apart on a permanent or indefinite basis
  • one parent has been absent for one month or more and his or her whereabouts are unknown
  • one parent joins in the grandparents' petition,
  • the child does not live with either parent, or
  • the child has been adopted by a stepparent

Grandparent Visitation After the Parents Separate:

The California Family Code authorizes the court to order grandparent visitation in any custody proceeding between the child's parents. There is a rebuttable presumption that grandparent visitation is NOT in the child's best interest if both parents agree that the visitation should not be ordered.

Grandparent Visitation After the Death of Grandparent's Child:

The court may award grandparents (or other relatives) visitation with a child where the child's parent has passed away. As always, such visitation is based upon what the court finds to be in the best interest of the child.

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