California is home to millions of families so it attempts to create an effective way for parents to make decisions related to their children and encourages them to work together when possible. If the court is tasked with making decisions about children, the guiding principle is the “best interest of the child.”
Right to Visitation
California recognizes the important role that parents play in their children’s lives and generally requires visitation to be provided for a non-custodial parent so that the child will have a constant and meaningful relationship with both of his or her parents. It is generally considered to be in the best interest of the child to have contact with both parents. Only when the court finds that a parent would be physically or emotionally harmful to a child or that it would otherwise not be in the child’s best interest to have visitation with the noncustodial parent will the court not order visitation. If a judge determines not to order visitation, he or she must make a finding that visitation would be detrimental to the child’s best interest.
Petitioning for Visitation
California encourages parents to enter into a written agreement regarding visitation. However, if they are not able to agree, they can petition the court for a visitation plan. This is done as part of an underlying petition for divorce, separation, paternity or domestic violence.
The visitation plan lays out the information related to when the parent will have the right to visit the child. The visitation plan may contain the following information:
- When overnight visits will occur
- When weekly visits will occur
- Pick-up times
- Drop-off times
- Holiday schedule
The visitation plan may be more detailed and may provide specifics such as where the child will be dropped off, who will be responsible for picking up the child, what to do in case an emergency occurs and which specific days throughout the year that the non-custodial parent will have visitation with the child, provisions regarding vacation and other details. The parents may be able to compromise and make their own agreement. If they cannot reach an agreement, the judge may decide what to order based on the best interests of the child.
Parents in California are strongly encouraged to come up with their own parenting plan that spells out how they want to raise their children and includes information related to custody and visitation. These plans can be very detailed and can help provide clarity so that parents can effectively co-parent together. The parenting plan is considered a legal document in California and should be in writing and signed by both parties. Their attorneys sign the document, too.
The parenting plan may contain information about the following topics:
- The identity of where the child will attend school
- The childcare facility or individual who will provide childcare
- The child’s religious upbringing
- The child’s primary pediatrician, dentist and other selected medical professionals
- How decisions regarding the child will be made
- What type of information about the child will be shared
- Telephone, email and other forms of electronic communication between the parents and child
- What type of custody arrangement will be in place
- What type of visitation schedule will be in place
The court reviews the plan and will typically approve the plan if the parents have agreed to it. Once the judge signs the parenting plan, it becomes a court order that either parent can enforce if necessary.
One way that many parents develop their parenting plan is by attending mediation. California requires every contested child custody and visitation case to go through this process unless the case involves domestic violence. Even if the parents do not believe that they can reach a compromise, mediation is still ordered.
Mediation is a process in which a third party neutral (the mediator) assists the parents in reaching a resolution of their case. The mediator points out the consequences of the parents not reaching an agreement, including the possibility of damaging their co-parenting relationship, the additional expenses associated with litigation and allowing the judge to make the final decision about what is best for the child. The mediator often shuttles back and forth between the parents in order to disseminate information, provide feedback and communicate settlement offers. If the parents reach an agreement, this information is drawn up and presented to the judge.
After a parent files paperwork for visitation, the courts assigns a mediation date. The parents are required to attend and participate in good faith in the process. This is necessary for all cases and the family court does not hear the case until this step has been completed.
If the judge ultimately makes a decision regarding visitation, he or she considers what is in the child’s best interest. The judge considers what would be best for the child’s health, safety and welfare. The court also considers such factors as:
- The child’s age
- The child’s maturity
- The child’s special needs
- The child’s preference
- The distance between the parent’s residence and the child’s
- The relationship between the child and each parent
- The ability of the parents to communicate with each other
There are also certain factors that cannot be considered by the court per California law. These factors include:
- Payment of child support – Visitation rights are treated independently of child support obligations. If a parent is not paying child support, he or she is still entitled to visitation.
- Parent’s absence from the home – This factor cannot be considered if the absence was only for a brief time and the parent demonstrated interest in maintaining visitation during the absence.
- Sexual orientation – Visitation rights should not be restricted based on parents having opposing moral positions or a parent’s sexual orientation unless there is evidence that these factors are detrimental to the child.
- Religious beliefs – Visitation should not be restricted based on a party’s religious beliefs unless there is evidence that they are detrimental to the child.
Decisions during Visitation
The parent who has legal custody of the child has the right to make important decisions related to his or her upbringing, such as where the child will go to school, the religion he or she will be brought up in or medical decisions. It is possible for parents to have joint legal custody in which they would both enjoy the right to make decisions related to their children. In the absence of such an arrangement, the parent with visitation can make supervisory decisions while the child is in his or her care.
California courts do not usually order supervised visitation in visitation cases. However, when the child’s health or safety may be at risk, the court may do so. Some of the times when a court may order supervised visitation include:
- When there is a history of domestic violence against the child
- When a parent has made false allegations of child sexual abuse
- When there is a concern that child abduction may occur
- When the child’s safety and wellbeing may be at risk
When the court orders supervised visitation, typically the visitation may occur but only when a friend, relative or other individual is present. In some situations, the court may order a professional to be present. The court can also make orders indicating the timing, duration and location of supervised visitation.
Modifying Child Visitation Orders
Child visitation orders can be modified at any time while the court retains jurisdiction and so long as the visitation order has not terminated. The parent wanting to make the change must show that there has been a change in circumstance that affects the child since the last order was put in place. Some changes in circumstance may include:
- One of the parents has moved away
- Evidence of abuse of the child
- Change in the child’s school schedule or extracurricular activities
- Desire of an older child to increase or decrease visitation