Child Custody and Visitation

Custody, visitation, and child support can arise in either a Divorce Proceeding or a Paternity Action. Paternity actions are simply cases where two parties have a child but are not married.

Information About Child Custody & Visitation

There are two types of custody: legal custody and physical custody. “Legal custody” means which parent has the right to make decisions regarding the child’s health, education, and welfare. It is standard for parties to have “joint legal custody” regardless of the custodial timeshare. However, if circumstances are unique (a parent is incarcerated, for example), a parent may be granted “sole legal custody.” Generally, the courts grant parents “joint legal custody.”

“Physical custody” generally refers to which parent has the child the majority of the time. That parent would be deemed to have primary physical custody and the other parent would be deemed to have “visitation.” If the parties have a timeshare that is 40% or greater, the parties may be deemed to share “joint physical custody.”

It is common for parties to have joint physical custody or for one parent to have primary physical custody while the other parent has visitation during set time periods. The Court may also order a party to have supervised visitation if there is a problem with drugs, alcohol, or domestic violence.

Family Court Services (FCS) Mediation

If a party wants a custody or visitation order, after filing their motion the parties are required to attend Family Court Services (FCS) mediation. In FCS mediation the parties meet with a Mediator who attempts to get them to reach an agreement. If an agreement is reached, it is written up by the Mediator for adoption by the Court at the future hearing. If the parties cannot reach an agreement, it depends on whether the County is “reporting” or “non-reporting” to determine what happens next. In a reporting county, the Mediator will write up a recommendation on what the Mediator thinks the custody and visitation should be. San Diego is a reporting County and Courts generally adopt the FCS Recommendation but are under no obligation to do so. The FCS report carries a lot of weight with the Court. In a non-reporting county, the Mediator makes no recommendation to the court and the parties are left to make their case to their Judge.

The FCS Mediator and the Court will focus on the circumstances of the parties and the children taking note of the status quo that was being exercised by the parties prior to coming to court. Thus, if the mother was a stay at home mom and the father worked Monday through Friday form 8am-6pm, the Court will likely fashion custody and visitation based on what the parties had historically done.