Child Custody and Visitation

What additional orders should be included in a child custody order in California?

A child custody order should contain more than just who has legal custody, who has physical custody, and the time-share schedule. There are many additional orders to consider when crafting a child custody order.

Sometimes it is hard to foresee what will be important or what will become an issue if you have not yet experienced co-parenting in two homes. Parents who used to live in one home together with their children and had one routine are now in separate homes and will face new challenges that they did not have before.

Below are many examples of orders parents should consider including in their custody order. These specific orders help parents understand the when and where and who is responsible for what.

While these additional orders are routinely included in court orders, parents know their children best and are well equipped with understanding of their children’s needs. If parents feel new or different orders should be made to meet the specific needs of the child or the family, parents are allowed to and should make the request to the court.

Joint Legal Custody

Although while exercising joint legal custody each parent may act alone, sometimes it is advisable for parents to discuss and agree to certain legal custody decisions, such as:

  • Enrollment in or leaving a school.
  • Beginning or ending mental health services.
  • Selection of healthcare providers.
  • Obtaining or renewing a passport.
  • Driver’s education.

Health Care Notification

The child’s health is extremely important and both parents should be on the same page and informed. The parent who takes the child to be examined by a healthcare professional should give the other parent notification after the treatment or exam. In the event of an emergency, each parent should be allowed to authorize emergency care and then must notify the other parent as soon as possible of the emergency situation. Parents should cooperate with administering the child’s medication.

School and Emergency Contact Notification

It is important that both parents be listed as a contact person on the child’s school forms as well as on emergency contact forms for school, health care providers, and child care providers.

Access to Child’s Records

Both parents should have the right to access records and information about their children, including medical, dental, and school records. Both parents should have the right to consult with professionals who are providing services to their child. Some custody orders provide that while parents need to notify the other about the child’s appointments, it is each parent’s individual responsibility to request records directly from the child’s provider. On the other hand, parents could agree that they will provide the other parent will copies of any records received.

Address Changes

Parents should keep each other timely informed of any changes to contact information, including cell phone number, home number, work number, email address, mailing address, residence address, and work address.

Custody Exchanges

There are several things to think about when considering custody exchanges: Time, location, and who is responsible for transportation.

Exchange Times: The time-share schedule should be specific with the start time and end time for each parent’s period of physical responsibility for the child. Exchange times can take place at any time that is best for the child and accommodate the parent’s abilities and resources. Exchanges can take place on the weekends. For example, Sunday at 3:00 p.m. allows the child to have dinner and settle in before school on Monday. Exchanges made during the week revolve around the child’s school schedule. When the child is in school, the exchange could be at drop-off at school in the morning, or it could be at pick-up after school in the afternoon.

One question that often comes up when exchanges take place during the school week is who is responsible for the child while the child is in school? The custody order must not have any gaps in the time-share schedule. Although the child is in school, the custody order must specify which parent has physical responsibility for the child while the child is in school. This is important because if the child is sick or needs to be taken home, parents need to know who is responsible for taking care of the child during the time when the child would have otherwise been in school. In addition, the parent with physical responsibility for the child while the child is in school receives that period of time counted toward the parent’s time-share percentage.

For example, Mother’s custodial time officially ends at drop-off at school on Monday at 8:00 a.m. Although Father does not pick up the child until school lets out at 3:00 p.m., Father will have physical responsibility for the child starting at 8:00 a.m. and that time will be included in Father’s time-share percentage.

On the other hand, if Mother drops off the child at school on Monday at 8:00 a.m, but the custody order specifies that Father’s custodial time does not officially start until pick-up at 3:00 p.m., then Mother will have physical responsibility for the child while the child is at school and that time period will count toward Mother’s time-share percentage.

Exchange Locations: Common exchange locations include the child’s school at drop-off or pick-up, the parents’ residences, or other places convenient for the child’s or parents’ schedules (such as where the child has an after-school activity or regularly scheduled appointment). When parents have a difficult co-parenting relationship, it can be helpful to have exchanges at a neutral, public location such as the library, a restaurant, a shopping center, or the police station.

Transportation: The custody order should specify who is responsible for driving the child to and from custodial exchanges. Parents could agree that the party whose custodial time is ending will drive the child to the exchange location. If exchange locations are at parents’ residences, parents could agree that the party who will be starting the custodial time will drive to the other parent’s residence to pick up the child.

Additional transportation orders to consider include:

  • The child will be driven only by a licensed and insured driver.
  • The child must be restrained in legal child restraint devices.
  • In contentious relationships, parents may consider an order providing that exchanges take place curbside rather than inside a parent’s residence. Parents might also want to include an order that states the parent driving the child will wait in the car.

Travel with Child

Upon commencement of the divorce proceedings, the Automatic Temporary Restraining Orders (“ATROs”) prevent either parent from removing the child outside the State of California without the prior written consent of the other parent or a court order. Parents may wish to restrict movement further by requiring prior written consent for removal from certain counties.

Change of Child’s Residence

Custody orders in Ventura County routinely include orders regarding moving the child’s residence. Ventura County custody orders typically prohibit either parent from changing the child’s residence more than 15 miles from the parent’s current residence without first obtaining written permission from the other parent or giving the other parent at least 45 days written notice of the intent to move so that there is time for a new agreement to be reached. For moves less than 15 miles, Ventura County custody orders typically require the moving parent to give notice as soon as the move is known, or no later than 5 days before the move.

Child Care

These orders may include not allowing the child to be left alone without age-appropriate supervision, selection of child-care providers, and informing the other parent of changes to child-care provider contact information.

Custody orders should also include who is responsible for child-care expenses and how child-care providers are to be paid. Child-care expenses are part of a child support order. Normally, the court orders that each party pays one-half of all child-care expenses incurred by either party in order to allow the party to work. The child support order may contain a child support “add-on” that includes the one-half amount due by the other party in the total child support payment each month. Or, the child support order may have a separate provision for payment of the child-care expense and procedures to submit a request for reimbursement to the other party.

Parents generally have the same child-care provider while working. Parents need to consider how payment should be made to the provider — should Mother pay her share to Father and Father handle paying the full amount to the provider, or should each parent pay their share directly to the provider?

Right of First Refusal

Some parents may wish to request that if the other parent is unable to physically care for the child during that parent’s custodial time and needs to obtain child care for the child, then the other parent should be given the right to care for the child first before child care is obtained. This type of order does not apply when a parent requires regular child care in order to work; this type of order is intended for when a parent is not working and is still unable to care for the child. A right of first refusal order is usually restricted to only when the custodial parent needs child care for a certain number of hours, such as 4 hours or more.

Cancelled Visitation

Life is busy and messy. Sometimes work gets in the way. Sometimes children are sick. Parents may consider having orders to cover situations such as these:

  • If a parent fails to pick up the child within a certain amount of time after the scheduled exchange time and did not make prior arrangements with the other parent, then the parent forfeits the visit.
  • If a parent knows in advance that she cannot exercise the visitation time (for example, she has a work meeting or work trip), then she must give the other parent advance notice.
  • If a child is sick, the custodial parent should give the other parent as much notice as possible about the child’s illness. The custody order might include provisions on how to handle whether the visit takes place if a child is sick. A sick child does not automatically mean the visit should be cancelled. Unless the child is severely ill and must stay in bed, parents may consider moving forward with the exchange because this allows both parents the opportunity to care for and nurture a sick child.

Phone Contact Between Parents and the Child

Parents may consider allowing the child unrestricted access to the non-custodial parent. This means when a child is with the custodial parent Father, the child should be able to call Mother at any time the child wishes. On the other hand, the Mother, as the non-custodial parent, should have reasonable access (rather than unfettered access) to contact the child so as not to interfere with the child’s time while with Father.

Mother’s phone time might look something like this: Mother may call child at a certain time (e.g., 7:00 p.m.) or during a time window (e.g., between 7:00 p.m. and 9:00 p.m.) on each day child is with Father. Father will make sure the child is available to take Mother’s call. If the call is missed, Father will ensure child returns Mother’s call within 15 minutes. Father will allow child complete privacy during the call and not listen in on the call or ask child about the call afterwards.

Disparaging Comments

To help facilitate peaceful and secure relationships, custody orders often include a provision prohibiting parents from making negative comments about the other parent within hearing distance of the child.

No Discussion of Court Proceedings with Child

Courts will usually include an order that parents may not discuss the court proceedings with the child, except as to provide age-appropriate explanations to the child about the parenting plan.

No Use of Child as Messenger

To avoid putting the child in the middle of any potential disputes between the parents, parents should communicate directly with one another and not use the child to relay messages or make requests.

Communication Between Parents

Parents who have difficulty communicating and co-parenting or sometimes end up in “he said, she said” situations, may consider using a third party communication platform, such as Our Family Wizard or Talking Parents, for all communications about the children, except in case of emergency when phone or text may be most appropriate. These online services allow parents to keep track of communications in one place and provide features such as when a message has been viewed, keeping track of the holiday schedule, submitting requests to change the custodial schedule, submitting requests for reimbursement, etc. Our Family Wizard and Talking Parents provide different services at different prices.

Alcohol and Substance Abuse

When alcohol and substance abuse is a problem for either parent, a custody order should include restrictions on consuming alcohol and non-prescription drugs within a certain number of hours before starting a visit or during the visit.

The custody order might also require the parents to avoid exposing the children to second hand smoke (cigarette and marijuana).

No Interference with Other Parent’s Custody Schedule

Children are often busy with after-school activities and social activities. Scheduling these activities can become difficult when the child has one schedule with Mother and another schedule with Father. The court will usually include an order prohibiting a parent from scheduling an activity that interferes with the other parent’s custodial time without first obtaining the other parent’s consent.

Third-Party Contact

Sometimes a parent may feel it is in the child’s best interest that the child does not have contact with a certain third party. Parents may request that the child not have contact with specific people. This is not a restraining order on the third party; rather, it is an order prohibiting the custodial parent from allowing the child to have contact with the third party.

Child’s Clothing and Belongings

In between the back and forth between parents’ homes, a child’s clothing and belongings can get misplaced or forgotten. It can be helpful to have an order that says each parent will have their own separate set of clothing for the child and parents do not have to provide additional clothing at exchanges. The child should be returned to the other parent with everything the child arrived with.

Supervised Visitation

If circumstances warrant a supervised visitation order, parents may consider having a professional visitation monitor or a non-professional third party as a monitor (such as a relative or friend).

Child Abduction Prevention

If child abduction orders are warranted, then specific orders to consider include: supervised visitation, posting a bond before visitation, restrictions on moving with the children, restrictions on travel, providing detailed itinerary and other travel documents, turning in the child’s passport and other vital documents, and notifying embassies or consulates of passport and travel restrictions.

Summer Vacation, Holidays, and Non-School Days

The time-share schedule should include provisions for summer vacation time with the child, as well has how parents will share the holidays and non-school days. This will be discussed in detail in a future post.

Do you have questions about child custody orders? Call the Law Office of Christine Nguyen Thomas to meet with a Ventura family law attorney.

 

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