Child Custody And Visitation

Divorce can be one of the most difficult experiences in a person’s life. If children are involved in a divorce, dealing with all the emotions can be even more challenging. At Moshtael Family Law, we understand the emotional turmoil you might go through when fighting for your children’s custody.

Our knowledgeable San Diego child custody and visitation attorneys will give your case the attention it needs and deserves. We have over 185 years of combined experience handling all types of family law cases, and we can help you determine the best approach for your case.

Our custody lawyers in San Diego have connections with skilled therapists who can help you with the emotional struggles you might face during your divorce and the child custody process. If required, we can offer you a free hour of therapy with one of our recommended therapists.

We will also educate you on what to expect in court and what's considered legal and appropriate. Our goal is not just to help you win your child custody or visitation case, but also to ensure you're fully prepared and informed to make the best decisions for your family.

Types of Child Custody

San Diego has primarily two types of custody: "legal" and "physical" custody.

Legal Custody in San Diego

When you have "legal custody," it means you have the right to make all major decisions about your child's health, education, and overall welfare. Some examples of these significant decisions include:

• Where your child will go to school
• Whether your child will engage in any religious activities, and
• Whether the child should receive medical attention (except in the case of emergencies)

Joint Legal Custody

Joint legal custody in San Diego means that both parents share the responsibility and right to make important decisions regarding the child's health, education, religious upbringing, and overall welfare. This type of custody is fairly common in San Diego. Based on this, joint legal custody is not the same as joint physical custody. Usually, both parents have joint legal custody unless one of these conditions exists:

• The parents are unable to make any decisions together
• The judge deems one of the parents unfit
• One of the parents is incapable of making decisions related to the child’s general welfare and upbringing, or
• If it's in the child's best interest that one parent be awarded sole legal custody

Sole Legal Custody

The term "sole legal custody" refers to a scenario in which one parent has the exclusive right to make key decisions involving their child's general welfare, health, and education, without the other parent's involvement. Pertaining to this, exclusive legal custody does not necessarily mean the same parent will be granted sole physical custody.

Physical Custody in San Diego

Physical custody means the place where a child will reside after a separation or divorce. Physical custody differs considerably from legal custody. The parent with physical custody is entitled to the child's physical presence in the home. If a child lives with one parent solely or predominantly, that parent is typically called the "residential" or "custodial" parent. The other parent is the "nonresidential" or "noncustodial" parent and has visitation privileges.

When determining how custody division should occur and whether the parents should be granted visitation rights, the judge in San Diego must first evaluate what is in the child's best interests. For example, if one of the parents has a history of abuse or domestic violence, the judge may rule that the noncustodial parent only has supervised visits with the child.

Joint Physical Custody

In "Joint physical custody," both parents share more extended periods of physical custody, and the child spends time equally, or close to equal, between their parents.

Sole Physical Custody

In "Sole physical custody," a child lives with one parent and gets visitation time with the other based on the court's authority to order it.

Visitation in San Diego

When the judge awards one of the parties sole physical custody, it will generally include a detailed visitation schedule to ensure the child gets adequate time with the noncustodial parent. A shared calendar could include extended visitation during the summer, splitting school vacations and holidays, alternating weekend overnight visits, and extended visitation during the summer.

In addition, visitation schedules often include pick-up and drop-off times and locations and an allocation of specified parental duties for transportation (which of the parents will drop off and pick the child up). The parents can decide which schedule works best for them and the child. If the judge determines it’s in the child's best interest, they will approve it.

If the noncustodial parent has a history of being abusive or absent, the court may allow them only supervised parenting time. The judge will assign a visitation supervisor to the family. The parent may have to visit with the child at a location approved by the court instead of the parent's residence. Depending on the situation, the court might put more conditions along with supervised visitation in place.

The judge may award only supervised parenting time if there is a history of absence or abuse by the noncustodial parent. The court will assign the family a visitation supervisor and may require the parent to visit with the child at a court-approved location rather than the parent's residence. The judge may award supervised visitation with/without other restrictions based on the case.

For instance, if the courts grant supervised visitation to a parent with a history of alcohol or drug abuse, they may also order that the parent attend meetings or outpatient treatment or therapy before considering whether to permit them unsupervised visitation. In certain extreme cases, the judge may rule that it’s best to keep the child from visiting the abusive parent entirely.

“Child’s Best Interests” Standard in San Diego Custody Cases

The judge will always prioritize the child's best interest in all child custody cases. Therefore, all visitation, custody, and physical orders are based on this premise. In deciding on what is best for your child, the judge will consider factors such as:

• Your child’s age
• Your child’s health
• You and the other spouse’s ability to care for your child
• The emotional bond between you and the child, as well as between the other parent and the child
• Whether either you or the other parent has a past of domestic violence or substance abuse
• If you or the other parent have any history of domestic violence or substance abuse
• Where your child goes to school; and
• Your child’s involvement in the community

San Diego custody law also permits the judge to consider a child's opinion on the custody matter (initial determination/modification). If the child is 14 years old and above, they are considered mature enough to express their preferences, and the presiding judge will accord significant consideration to the expressed preference.

In relation to this, if the judge determines that the preferred custodial arrangement is against the child's best interest, they will award custody based on other factors.

Frequently Asked Questions

What is temporary custody in San Diego?

A divorcing couple with kids under 18 has to choose between physical and legal custody agreements for their children. Unfortunately, these custody disputes often become rather protracted and emotionally draining for all parties involved, including the children and the parents. Therefore, in some instances, the judge may grant “temporary custody” to one co-parent before finalizing the divorce while the couple continues battling for permanent custody rights.

How long do child custody cases take in San Diego?

The duration of child custody cases hinges on several factors. If both parents are dedicated to doing what's best for the child and are open to compromise, the custody case can be resolved quickly. Pertaining to this, the process can take longer if the parents cannot reach an agreement and legal intervention is required for a resolution, or mental health experts need to be involved.

Is it mandatory to engage in child custody mediation in San Diego?

Under California law, before any child custody litigation, the parents are required to attend mediation. The issue is then moved to court if the mandatory mediation session fails to resolve the dispute.

Can child custody cases be appealed in San Diego?

Yes, if you disagree with the child custody ruling, you can file an appeal. Filing a child custody appeal isn’t the same as a retrial. During the appeal, your San Diego attorney will explain where the discrepancy lies. If the higher court supports your appeal, they may make a new decision or order a new trial.

Are child custody records available to the public?

Unless the judge orders otherwise, court records are open to the public. A judge may seal records only if the couple sights safety or privacy concerns. The parents will have to follow specific procedural regulations in such cases.

Should I talk to my child about who she/he wants to live with?

The answer to this question will vary based on the situation (whether the divorce is amicable or whether you’re in the midst of a bitter custody battle) and the child's age. If both parents are committed to co-parenting, and the child is mature enough, giving the child a chance to opine on the custody schedule might be a profound idea.

Before discussing custody schedule details with your child, you must explain that you want their input because you value their opinion. Ultimately, you and the other parent will decide what's best for them. It may not always be possible to meet their requests, but this approach will make them feel included and understood.

Do the grandparents have rights to custody or visitation?

In San Diego, grandparents are permitted to petition the courts for reasonable custody or visitation rights. If the parents are still married, grandparents cannot request visitation rights. Furthermore, this rule has some exceptions, such as if the parents live separately or if there is evidence of drug abuse.

Am I entitled to custody of my children if they were born out of wedlock?

The answer is yes. In relation to this, you need to take some additional steps to safeguard your legal rights. It will help secure visitation rights for your children. Some couples choose to have kids without tying the knot. In this situation, listing both the parents' names on the birth certificate at the time of the children's birth can protect their father's rights.

Signing a Voluntary Declaration of Parentage is the other option. If neither of these steps has been taken, the first step is to establish paternity involves agreeing to a DNA test before you can turn to the courts to obtain visitation rights to or custody of the children.

What can I do if my ex-spouse is making untrue accusations about our children’s wellbeing?

Law enforcement must treat all child abuse or neglect allegations seriously and conduct a thorough investigation. Based on this, the courts never make any ruling without deep consideration. They recognize that sometimes, one parent may falsely allege that the other parent is abusive or neglectful towards their children and that they do this for personal gain.

If you find yourself in a situation where the other parent falsely accuses you of subjecting your kids to dangerous situations or harming them, contact our robust and outstanding San Diego child custody attorney immediately. Someone who has been through the legal battlefields before and knows how to survive while under fire. We can assist you in defending yourself against these accusations and ensure that the other parent is held responsible for their deceit.

Will my sexual orientation be an issue during my San Diego child custody proceedings?

Definitely not! In San Diego, laws prohibit the consideration of sexual orientation as a determining factor in custody battles between parents. It means that the court cannot use your sexual orientation as a reason to rule against you in custody cases, just as they cannot use your race or religion against you. Therefore, you can be confident that your sexual orientation will not be a factor that affects your custody proceedings.

Will my personal relationship with a new partner affect my San Diego child custody rights?

The repercussions of a new romantic liaison on your San Diego child custody proceedings are likely minimal unless your partner is found to be perpetrating physical, emotional, psychological, or sexual abuse on your children. On the other side, if your involvement with your new partner is causing you to compromise on your parenting time with your children, the other parent could potentially have a legitimate reason to pursue a modification of their custody rights.

Can San Diego family courts deny visitation and/or child custody to one parent?

Certain circumstances may arise where a co-parent in San Diego is denied child custody or visitation by the family court. Furthermore, these kinds of scenarios are usually reserved for exceptional situations that pose a threat to the well-being of the child, and may include:

• Alcohol or drug abuse
• Evidence of sexual, physical, or emotional abuse
• Legitimate fear of kidnapping
• Proof that the environment the co-parent offers is unsafe

Can I refuse to allow joint custody or visitation to the co-parent if I fear for my child’s safety in San Diego?

Under no circumstances is it lawful to withhold visitation rights from a parent when a legitimate court order exists. Even minor disagreements, delinquent child support payments, or disapproval of the other parent's new partner cannot be cited as valid grounds to refuse the other parent their visitation rights. If a parent chooses to impede visitation for unfounded reasons, it could result in grave legal consequences for the offending party.

If you harbor any concerns about your child's safety during visits with the other parent, you must seek advice from our knowledgeable child custody lawyers in San Diego as soon as possible. By doing so, you can better understand the options available to you if you need to challenge visitation within the purview of the law. Never attempt to handle things yourself, as this could have serious legal repercussions for which you may be held responsible.

Finding a Custody Arrangement That Fits Your Family

Sharing physical custody of your child with your ex is never easy. Depending on your specific situation and related details, various options may be available when planning shared custody. Some options that you may consider in San Diego include:

• Separate parents, separate homes - The most commonly recognized and prevalent type of living arrangement, often synonymous with the concept of shared guardianship, is the traditional ' separate parents, separate homes' model. In this arrangement, each ex-spouse resides in their respective home, and the children move back and forth between the two homes, living with each parent during their designated parenting time. Many people associate this widely recognized and implemented method in shared custody with co-parenting.
• Nesting or bird nesting - An unconventional yet increasingly popular arrangement known as nesting involves designating the children's dwelling as the "nest," with parents rotating in and out of this home based on custody agreements. While this method can be effective for families who place a high value on maintaining stability and consistency for their children, it’s by no means an effortless approach. For nesting to function correctly, each parent must retain their own separate home in addition to the children's nest. Both parents must be fully dedicated to the upkeep and maintenance of this shared living space.
• Living together - Some families co-parent while living in the same space. Although this is not a common choice, it becomes feasible for people with larger homes and distinct living areas. Sometimes, this option works well for people with a main house and a guesthouse on the same property or those living in the same apartment building.
• Finding the best arrangement for you and your kids - Regardless of your decision, you must plan all living and custody arrangements after divorce, prioritizing your children's wellbeing.

When the Stakes are High, You can Trust Our Child Custody Attorneys in San Diego to Fight for the Best Outcome

At Moshtael Family Law, we understand the importance healthy upbringing for a child and the vital role parents play in their lives. Our firm provides valuable guidance on the intricate legal aspects of child custody and visitation rights.

Our San Diego child custody lawyers have extensive experience handling such cases successfully inside and outside the courtroom. We have a demonstrable background in litigation, which is crucial when a custody dispute goes to court. At the same time, our child custody attorneys are committed to seeking amicable resolutions for child custody and visitation as far as possible.

We have the legal skills to handle complex situations, such as ones involving allegations of neglect, domestic violence, or substance addiction. These serious issues can significantly impact child custody proceedings, and you will have our legal team by your side to help you navigate them.

To schedule a free and confidential consultation with a San Diego child custody attorney at Moshtael Family Law, call us at 619-639-9898 or contact us online.