What is involved in establishing child custody and setting up a parenting plan?

What is Legal Custody?

  • Legal custody covers the parents’ rights and responsibilities associated with decisions regarding a minor child. These decision making powers generally relate to health, education, religion, and welfare, and include, but are not limited to, medical care choices, selection of a school, and obtaining a passport or driver license for a minor child.
  • Sole legal custody gives one parent the right to make these decisions on behalf of the child(ren).
  • Joint legal custody allows the parents to share these rights and responsibilities equally. Parents must consult with one another in making these decisions.

What is Physical Custody?

  • Physical custody refers to where, when and how the children spend time with each parent.
  • Sole physical custody gives one parent the care and custody of the children.
  • Joint physical custody establishes a shared parenting plan that insures continuing and frequent contact with both parents.
  • Split custody occurs where each parent has custody of different children.
  • “Nesting” is an option where the children remain in the family residence and the parents rotate.

How do we share the future custody and parenting of our children?

  • A parenting plan will be established either by stipulation between the parties or a court order based upon a finding by the Court, which may involve a child custody evaluation and/or the appointment of minor’s counsel.

How can custody be modified?

  • As long as the parents agree on modifying custody and visitation from time to time, they are able to modify the parenting plan via verbal agreement.
  • If the custody and visitation becomes substantially different from the original agreement or order from the Court, the parents should modify the parenting plan by filing a stipulation to modify custody with the Court.
  • If the parents are unable to continue with the current custody and parenting plan and are unable to agree on a new custody and/or visitation arrangement, one parent may file a motion with the Court to modify existing court order, within the boundaries of family laws.

What if I am forced to move?

  • A parent may always move away. However, that does not guarantee that the parent will be allowed to move with the child(ren). If the parties are able to agree, then the moving party will move and take the children, said agreement should be filed with the Court. If the parties are unable to agree, a Court hearing must be set and the Court would decide whether the moving party may take the child(ren).

What if one of our children has special needs?

  • Both parents have a responsibility to support a minor child and an adult child, having special needs and unable to live independently.

Do our children have a voice in the parenting plan?

  • In high conflict cases, the Judge may appoint Minor’s Counsel to represent the child(ren). In determining a recommendation for a parenting plan, Minors Counsel meets with both the children and the parents. Minors Counsel may also conduct interviews with teachers, pediatricians, mental health professionals, social workers, friends, relatives, etc. After conducting interviews, Minors Counsel makes a recommendation to the Judge regarding the custody of the children. Minors Counsel may also recommend a Child Custody Evaluation or a 730 Exam.
  • Children, based on their age, may have the ability to decide with which parent they would rather live. The age at which a child is able to make this decision varies from child to child. The ultimate decision rests with the parents or, absent agreement between the parents, the court.

How long does the Court have jurisdiction over the parenting plan?

  • In a proceeding for dissolution of marriage, legal separation, nullity of marriage, or paternity, the Court has jurisdiction over the parties’ minor children. The Court does not have jurisdiction with regard to a child who has reached the age of majority (18 years) unless the child is a special needs child.

Do grandparents have any rights?

  • According to the Family Code, reasonable visitation may be granted to a grandparent(s) of a minor child of a party to the proceeding if the court finds that visitation by the grandparent(s) is in the best interest of the child.
  • Grandparents may also petition the Court for custody of their grandchild(ren).