Parenting Plans

When discussing a parenting plan for your children following separation from your spouse, remember there is no "standard" parenting plan for divorced couples. What worked or was court-ordered for your friends who are divorced is not necessarily what is appropriate in your circumstances.

An appropriate child custody and visitation plan will vary depending on the ages of the children, their school schedule, the work schedules of the parents, and the geographic distance between the parents' homes. The parenting plan should provide regular, consistent times with each parent for day-to-day care, school and extra-curricular activities, holidays and vacations. The plan should be adjusted to accommodate the children, not the parents' convenience.

If the parents do not communicate or cooperate well, it may be necessary to set times for exchange of the children, provide which parent will provide transportation, and at times even where the children will be picked up and dropped off. The parenting plan should be detailed enough to avoid conflicts that may arise in the day-to-day parenting of your children. If the child is involved in sports, religious, or other activities, there should be provision for which parent (or both) are responsible for transporting the child to those activities.

At the same time, the parents should agree on which activities the children are involved. It is not appropriate for one parent to enroll the child in an activity without consulting the other parent, especially where doing so would impact the other parent's time with that child. A sound parenting plan should allow the child frequent and regular contact with both parents while affording them a safe, nurturing home environment.

Finally, if either parent has a problem with drug or alcohol abuse, violence, or neglect, you should consult an agency, therapist or attorney to assist in making adjustments to assure the child's safety and well-being. There are numerous web sites on the internet that can assist you with guidelines, suggestions, and even worksheets to assist with a sound, detailed agreement.

Child Custody Mediation

When parents are unable to agree on a parenting plan for child custody and visitation, the court requires the parties to attend mediation. This is true whether the parties are establishing an initial parenting plan following separation, or modifying a current custody plan.

The mediator is a mental health professional trained to assist the parties negotiate an agreement for custody, visitation, and other custody-related issues. If the parties are able to reach a complete agreement, the mediator will document the agreement so the parties can have the agreement adopted as an order of court. If the parties are unable to reach an agreement following mediation, the mediator will submit a report to the court with copies to the parties making a recommendation as to the child's best interests.

During the mediation process, the mediator may interview the children, other parties joined to the case, and other individuals who have unique information relating to the parties or their children - such as teachers, counselors, and day care providers.  However, the mediator's contact with third parties is usually at the discretion of the mediator given the parties' particular circumstances.

There are a few different ways to initiate the mediation process. If one party files an Order to Show Cause for custody or visitation, or requesting a modification of a current custody plan, the matter will be automatically referred for mediation at the Office of Family Court Services. Alternatively, either party can file a Petition for Mediation directly with the Office of Family Court Services without setting a court date. Finally, either party may file a Petition for Private Mediation with the court requesting the court order the parties to participate in private mediation with one of the private mediators on the court-approved Private Mediation Panel.

If you are considering mediation to resolve a dispute regarding child custody in Sacramento County, I recommend visiting the Family Court Services web site for additional information regarding the process and what to expect.

Chil Custody

When discussing child custody, it is necessary to differentiate between “legal custody” and “physical custody”.  Legal custody refers to the right and responsibility to make decisions regarding the health, education and welfare of a child, but does not reflect where the child resides.  Physical custody generally addresses where the child lives and how much time the other parent has visitation. 

When discussing legal custody, the court can order "joint legal custody" or “sole legal custody”. Joint legal custody is the most common and refers to custodial situations in which both parents share the right and responsibility to make decisions regarding the child's health, education, and welfare. The parties must consult one another regarding any significant decision regarding the child. In joint legal custody situations, one party cannot make a decision regarding the child if the opposing party disagrees.  If they cannot agree, they must resolve the disagreement through the courts or with the assistance of a mediator. Conversely, if one party has “sole legal custody”, that party can make such decisions on behalf of the child even though the other party disagrees. 

With physical custody, courts use the terms joint physical custody, sole physical custody and, more recently, shared physical custody. Joint physical custody simply means both parties will have significant, although not necessarily equal, parenting time. Sole physical custody means the child will reside primarily with one parent, subject to the other parent’s visitation rights. The distinction is not always clear. 

One important result of a sole physical custody order is that courts have held a parent with sole physical custody has the presumptive right to change the child’s residence without the permission of the other parent. This right is subject to the court’s ability to stop a parent from changing a child’s residence when doing so would prejudice the rights or welfare of the child, or where it would adversely affect the other parent’s ability to maintain contact with the child.  There is significant case law on the issue, and these situations are referred to as “move-away” cases.  The determining factor is not just the term used to describe the physical custody arrangement, but also the actual time spent with each parent and other relevant issues.

Finally, in conjunction with physical custody courts also use the terms “custodial parent” and “non-custodial parent”. But these designations also do not, in and of themselves, define the parties rights. Rather, they have become terms of art in family law without conferring or denying the parties’ rights with respect to the child.