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Contents How does the court decide who will get custody of our children? There are numerous ways to resolve custody and visitation issues. The best solution is for you and the other parent to agree on who will take care of the children. If you and your spouse are able to form such an agreement, then your lawyer can assist you in preparing a written plan that can be incorporated into the divorce papers filed with the court. This agreed-upon custody and visitation arrangement will then become an enforceable court order. If you and your spouse are unable to agree on the custody of your children, the first step will be for either or both of you to ask the judge for temporary custody. At that point, your case will be referred to custody mediation. A skilled mediator will meet with you and your spouse and attempt to get the two of you to agree upon a custody and visitation plan. Initially, your lawyer is not present during these meetings, but the parents, their lawyers and the custody mediator may all meet later if there are difficulties in reaching an agreement. If finances permit it, the parties can choose a private mediator rather than a court-appointed mediator. The advantage to a private mediator is that it may be possible to get an appointment more quickly, and the private mediation process can continue as long as is necessary for the parties to reach an agreement. The number of sessions with a court-appointed mediator is often limited due to governmental budgetary constraints. If you an your spouse are unable to agree at mediation, then the court may appoint a trained evaluator or investigator to interview the parents, children, teachers, family friends, and others who may able to help determine which custody and visitation arrangement would be in the child’s best interests. The evaluator performs a thorough investigation and then prepares a written report to the court. Evaluations can be expensive (starting at $3,000-$4,000 in Marin County) and the cost is generally shared by the parties. If either or both parties are unwilling to accept the evaluator’s recommendations regarding custody and visitation, then these issues will be decided by a judge at a contested trial. The judge will consider evidence (including the evaluator's report) as to which parent can do the better job of caring for the children's needs. Often, the preference in awarding custody will be to the parent who has already been the primary caretaker of the children. The judge also may consider the age of the children, the geographic separation of the parents, and the location of the children's schools. With older children, the judge may also consider the children's wishes as to which parent they desire to live with. What is the difference between joint and sole custody? Sole custody means that one parent has primary responsibility for bringing up the children. Joint custody means that both parents share responsibility. If you and your spouse choose joint custody, you can decide on joint legal custody, joint physical custody or both. With joint legal custody, both parents are involved in making important decisions about the children, such as medical care or school choices. Joint physical custody means that the parents share the day-to-day care of the children. With joint physical custody, the children do not necessarily spend equal amounts of time with each parent, although they may do so. For example, the children might spend school days with one parent and weekends and some vacations with the other. A joint physical custody arrangement is much more likely to work if the parents live close to one another. If a custody plan does not work, can it be changed? Yes. The easiest way to change a custody arrangement is for you and the other parent to come up with a new plan and ask a judge to approve it. Judges will often approve changes even without a hearing if you both request them. If you cannot agree on changes, then either of you may request a modification of the custody arrangement. Like the initial custody determination, the judge's decision will be based on your children's best interests. As a general rule, however, getting the custody arrangement changed may be difficult if the children are reasonably well cared for and the custody plan has been in effect for some time. |
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