Child Visitation Rights in California
In family law, child visitation refers to the legal authority to visit with a child, as opposed to the permissive authority to visit with a child. Any person may visit with a child so long as a child's parent or guardian grants permission for the visit and the visiting person is not otherwise restrained by law from visiting the child. Legal authority is the right to visit with a child even over the objection of other persons, such as the child's other parent.
There are several different types of child visitation. Biological parents have an automatic legal right to take physical possession of, and legal custody of, their children, including the right to visit their children. Parents do not need to file child visitation forms with the family court to establish parental rights, unless the other parent objects to child custody or child visitation. If there is no court order to the contrary, parents equally share the rights and responsibilities of their children. Other persons, such as grandparents, guardians, stepparents, and other., do not have an automatic legal right to visit with a child until those visitation rights are established in family court.
When persons disagree on the physical or legal custody of a child those persons may file a request to establish their respective child custody and visitation rights. Child custody and child visitation disputes may arise out of a divorce (dissolution of marriage), a legal separation, a request for domestic violence restraining order, a paternity suit, (parentage action), a petition to establish grandparents' rights, or a juvenile dependency case.
Review of Child Custody Law
Child visitation rights are inextricably related to child custody rights. Therefore, a brief review of child custody law is included in this information. For a more in-depth review of child custody rights, see Child Custody.
There are two types of child custody: legal custody and physical custody. Legal custody refers to a parent’s right to make important legal decisions concerning his or her child's health, education, residence, associations, and more. Physical custody refers to the right to take physical custody of a child for purposes of residency.
Both legal and physical custody can be classified as joint or sole. Joint legal custody means the parents equally share in the rights and responsibilities of making important legal decisions for a child. Sole legal custody means that only one parent makes important legal decisions for a child. Joint physical custody means that the child lives with both parents, but not necessarily equally (50/50). Sole physical custody means that a child lives with one parent most or all of the time.
Note: The term primary custodial parent refers to the parent who has his or her child more than half of the time. The non-primary custodial parent may, or may not, be entitled to child visitation, also called parenting time, with his or her child, depending on the circumstances.
Note: Parents do not have rights or responsibilities to child custody and/or child visitation to emancipated minors; however, child support obligations may continue in favor of emancipated minor in certain conditions. See Emancipated Minors Rights.
Establishing Child Visitation Rights
If the child’s parents are married, child custody and visitation orders may be requested as part of a divorce, a legal separation, or a request for domestic violence restraining order. When the child’s parents are not married, child custody and visitation orders may be requested by filing for a domestic violence restraining order against the other parent and in favor of a shared child, or by filing a paternity suit, also called a parentage action, to establish father’s rights to child custody, support, and visitation. Also, Grandparents may request visitation with their grandchildren (See Grandparents' Rights).
The legal forms required to establish or modify child custody and/or child visitation rights may be found at Legal Forms.
Caution: Child custody and visitation cases are complex legal matters. Legal forms do not provide information on any of the following important issues: drafting supporting declarations to avoid inculpatory statements, investigations, subpoenaing medical, school, civil or criminal records, examination of witnesses, court procedure and rules, mediation advice, adherence to evidence law, criminal law, and/or family law, and more. Mistakes are costly, and sometimes irreversible. Family law judges are not lenient on the rules of law and procedure just because the petitioner or respondent is not aware of those legal rules.
Family Law Mediation
If persons cannot agree on child custody or visitation issues the judge will send both persons to family law mediation. Family law mediation is an attempt to resolve any child custody and/or visitation issues with the assistance of a family court mediator. A mediator will attempt to resolve the child custody and visitation issues, or at least narrow the issues to as few as possible. After mediation, the mediator will report his or her findings to the judge and make a child custody and/or child visitation recommendation for the judge to consider. Persons may disagree with a mediation report and recommendation for various reasons beyond the scope of this article.
A 730 evaluation is an investigation conducted by a court appointed expert to help the court better understand a particular issue in a case. In child custody, support, and visitation case, usually the expert is a psychologist who is called upon by the court to investigate a parent’s ability to care for a child when the court suspects that the parent has questionable and negative parenting methods due to mental health issues, substance abuse issues, or other concerns. The term 730 evaluation refers to California evidence code section 730, which, in part, grants a judge the authority to appoint an expert (730 evaluator or 730 investigator) to investigate issues that are complex for the court to understand without the assistance of the expert. For more information, See 730 Evaluation.
Best interest of the child
When persons legally dispute child custody and/or child visitation issues a family law judge will make orders that are in the child’s best interest. What is in the child’s best interest depends on many factors, including, but not limited to, the benefit, if any, in maintaining frequent and continuing contact with both parents, the child's age, health, safety, and care requirements (mental or physical disabilities included), the child’s emotional ties to a parent or sibling, a parent’s substance abuse issues, if any (i.e. drugs and alcohol abuse), and more.
Note: A mediator and/or 730 evaluator’s recommendation is usually strong evidence that judges may consider in making child custody and visitation orders, as the mediator and/or 730 evaluator recommends child custody and/or child visitation schedules that reflects what the mediator and/or 730 evaluator feels in the child' best interest.
Common Child Visitation Orders
Reasonable Child Visitation Order: Allows the parents to choose a child visitation schedule without further court assistance. A reasonable child visitation order is preferred by most parents because it allows the parents to work around their respective schedules. Reasonable visitation orders only work when parents are capable of co-parenting.
Fixed Child Visitation Order: is a detailed child visitation order for parents who otherwise could not agree on a visitation schedule. Fixed child visitation orders often include precise details as to all of the following: a child’s daily schedule, a child's holiday schedule, exact timing and location of child drop-offs and pickups, parent-child phone communication schedule, child travel and/or Child Move Away restrictions, alcohol use restriction orders, child’s clothing and diet details, notification requirements for any change in the schedule and emergencies, frequent contact updates (email, address, phone, etc.), requirement to use Family Wizard, etc..
Supervised Child Visitation Order: means that a third person monitor (supervisor) is always present during a person's visit with a child. The supervisor could be any third person with court approval but usually the court will appoint an unrelated and pre-approved professional supervisor. The parent’s visit with his or her child, as well as the physical exchange of the child, may be supervised. Supervised visitation is ordered when a parent is alleged to have physically or emotionally harmed a child or where the child is at risk of being abducted by the visiting parent.
Virtual Child Visitation Order: means a primary custodial parent is required to facilitate child visits via electronic visual communication, such as Skype, FaceTime, etc. Virtual child visitation may be ordered as supervised (supervisor is present during communication), or non-supervised. Virtual child visitation is usually an enhancement to other types of visitation.
No Child Visitation Order: means the a person is denied all visitation with a child. The following circumstances are usually present in no child visitation orders: mental illness or substance abuse/addiction of the visiting parent, likelihood of visiting parent to kidnap or physically harm the child, visiting parent has previously abandoned the child, or in grandparents' rights cases where both natural parents object to visitation by the child's grandparent.
Therapeutic Child Visitation Order: is visitation that is monitored by a psychologist or social worker who facilitates the visits when a child has negative emotions about the visit. This type of child visitation order is common where one parent alienates a child from the child’s other parent .
Modification of a Visitation Order
A parent filing a request to modify a child custody or child visitation order must prove to the court that circumstances have changed and the previous custody or visitation schedule is no longer suitable, i.e. relocation of either parent, failure of one parent to abide by the current schedule, requests by an older child to modify the schedule, parent no longer addicted to drug or alcohol, etc. For more information, See Modifying a Court Order.
Contempt of Court & Child Visitation
Willful failure to follow court ordered child custody or visitation is contempt of court. Of course, implementing a visitation order necessarily depends upon the parent's ability to make the child available for visitation in the first place. A parent usually has sufficient control over a young child so as to compel the child to visit the other parent as ordered by the court. With older children, parents must make their best effort to compel the visit.
Note: A child's preference as to where and when they want to visit a parent is relevant, but not determinative, when making orders concerning child custody and visitation.
Note: Courts do not automatically give child custody to a mother or father, no matter the age or gender of the child. Also, a judge cannot deny a parent’s right to child custody and/or child visitation based on any of the following: lack of marriage, sexual orientation, physical disability, failure to pay child support, or short absence from the child’s life.
For more information child custody or child visitation rights, contact our family law attorneys today for a free consultation. Call today!
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Common Family Law Forms* (Abbr.)
*Request for Child Custody, Support, or Visitation in Divorce or Legal Separations:
- FL105GC-120 Child Info Sheet
- FL150 Income & Expense Decl.
- FL192 Notice of Rights
- FL195 Wage Assignment Request
- FL300 Request for Order
- FL305 Request for Emergency Order
- FL311 Parenting Time Application
- FL313-INFO Info on Child Custody
- FL319 Request for Attorney Fees
- FL320 Response to Request for Order
- FL330 Proof of Personal Service
- FL341(A) Supervised Visit Orders
- FL341(B) Prevent Child Abduction
- FL341(C) Holiday Schedule
- FL341(E) Joint Legal Custody
- FL342 Child Support Info Sheet
- FL350 Stipulation for Child Support
- FL355 Stip for Custody & Visitation
- FL398 Active Military Form to Modify
*Request for Child Custody, Support, or Visitation in Paternity Suits:
- FL-105 UCCJEA (Child Info)
- FL-150 Income Expense Decl.
- FL-200 Petition to Establish Paternity
- FL-210 Summons To Paternity Court
- FL-220 Response to Petition
- FL-230 Declaration for Default
- FL-235 Waiver of Rights Info
- FL-240 Stipulation of Paternity
- FL-260 Child Custody & Support
- FL-270 Response to Custody Request
- FL-272 Set Aside Motion
- FL-273 Declaration to Set Aside
- FL-274 Info on Set Aside Motion
- FL-276 Response to Set Aside Motion
- FL-280 Withdraw Voluntary Paternity
- FL-281 Info on Withdrawal of VP
- FL-285 Response to Withdrawal of VP
- FL-330 Proof of Personal Service
*Request for Child Custody, Support, or Visitation In Domestic Violence Restraining Order Cases or Grandparents' Rights, See DVRO or Petition For Grandparents' Rights.
*Other forms may be necessary. Forms are also available in Spanish and other languages.
Divorce & Family Law Attorneys
Child Custody & Visitation Rights
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