Before parents can file for custody and visitation of their child, there must be an underlying action. If the parents are married, there must be an action requesting dissolution of marriage or legal separation to even be able to receive court orders on custody issues. If the parents are unmarried, an action must by filed to establish the parental relationship (otherwise known as a paternity action).
If there are not child custody orders currently in place, who can exercise custodial rights?
Both legal parents. Neither legal parent has any greater custodial rights than the other without a child custody order in place. Except in cases where there is a significant risk of harm to the child, a court will not likely enter temporary custody orders without a full hearing and mediation, which can often take months. This is why if child custody has been problematic, it extremely important to begin the process immediately and correctly with the help of an attorney before one parent withholds the child. Law enforcement cannot remedy the situation without a court order, thus you may not have access to your child for some time without custody orders in place.
Legal Custody: Sole vs. Joint
Sole Legal Custody refers to one parent having the right and responsibility to make decisions regarding the health, education and welfare of a child.
Joint Legal Custody refers to a custody arrangement in which both parents share the right and responsibility to make decisions regarding the child's health, education, and welfare. Joint legal custody is typical, unless there are specific compelling reasons against it, which must be articulated and argued to the court.
Physical Custody: Sole vs. Joint
Sole Physical Custody refers to the child residing with, and being under the supervision of one parent. Orders for sole physical custody are subject to the visitation rights of the other parent.
Joint Physical Custody simply means that both parties will have significant periods of physical custody with the child.
San Diego family courts will often use the term "primary" physical custody to refer to an unequal timesharing arrangement, where one parent primarily exercises physical custody of the child.
Visitation and Supervised Visitation
Visitation rights are typically awarded to parents requesting time with their child. The amount of time and the parameters of visitation are often topics of dispute.
If there are necessary and compelling circumstances, a parent may potentially obtain a court can order in which the other parent's visitation be supervised by a third party. The supervision can be terminated in court if the parent under visitation exercises a pattern of positive behavior over time and files for a modification.
Regardless of what you seek for your child's best interests regarding custody and visitation, Fyfe Law Firm is here to provide legal assistance and representation for mother or father. Call us at (858) 412-7714.