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Child Custody and Visitation Part 1


Written by Delilah Knox Rios, Attorney at Law

   A Two Part Series – Part One

Child custody and visitation orders may be made in several types of actions including Dissolution of Marriage (divorce), Nullity (anullment), Uniform Parental (paternity), Juvenile Dependency Court (children’s court), Adoption, and Guardianship. This series will address the child custody and visitation as they relate to each type of action and the different factors which are required to be addressed by the Court.

Child custody is an extremely emotional issue for parents and other family members related to minor children. A minor child is one who has not yet reached the age of majority, which in 1972 was amended to be 18 years of age. However, child support may continue until graduation from high school if a full time student or age 19. In cases granted prior to 1972, child support may continue until age 21 or other dates by stipulation or agreement of the parties. In exceptional cases, support of a handicapped or other disabled adult children may be ordered.

Child custody is divided into legal and physical custody. Legal custody involves which parent or non-parent will have the responsibility and obligation to care for the child’s legal needs, i.e., making decisions for health, safety, welfare including which school the child goes to, which doctor and medical procedures are required, and whether the child has a passport, driver’s license or other documentation. Legal custody can be granted either jointly or solely.

Physical custody refers to the parent or non-parent who has the responsibility and obligation to care for the child’s day to day needs, i.e., making the decisions about where they live, what they will wear, what they will eat, what child care they will utilize, and the mydrid needs of the child. There is no statutory or common law term for the person not having primary physical custody or joint physical custody, although court orders sometimes provide for “secondary” physical custody. The time of a non-primary parent is sometimes referred to as “contact time”, “time-sharing”, “parenting plan”, or “visitation.”

The non-primary physical custody parent or non-parent has there contact time spelled out either in specific detail (which alleviates misunderstandings in most cases) or referred to as simply “reasonable.” The difficulty with “reasonable” time sharing is that if a disagreement occurs, the law enforcement agencies called to mediate the dispute have an “ambiguous” order that cannot be easily enforced. Also, a court, in most cases, will be unable to determine if such an order has been violated by either party sufficient to find either party in contempt of the Court order.

In the “standard” custody/visitation orders most parents in divorced families will recognize is an alternating week-end Friday at 6pm to Sunday at 6pm and alternating holidays type of order. Parties with “50/50″ custody visitation orders may recognize a “week on/week off” time sharing plan. However, courts and parties sometimes reach variations of these types of orders, with the “4 days/3 days”, or “2,2,5,5 day” or one or two “mid-week visits” either for “dinner (5pm to 8pm)” or overnight visits. Such orders assist the child with normalizing frequent and continuing contact with both parents and allowing the child to “live” in both homes.



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