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6 pages /
6 pages /
Conclusion: If parents can work out a custody agreement amongst themselves, then child custody is simple. It is when the two parents cannot work out an agreement that child custody becomes complex.
What are parental rights and how do they apply in specific family law situations? Parents ask lawyers questions such as, "Could I have a chance to get sole custody?" "What is joint custody?" and "If I take my case to court, what chance will I have that the judge will see it my way?" The answers to these questions may not be as specific as parents would like. The only sure thing is that court appearances are costly, emotionally draining, and often accompanied by long waits for court dates. In respect to family law, two major points are especially useful to remember. Try to stay out of court and know the laws.
First, parents should try to stay out of court. This means that parents should negotiate issues between themselves and their attorneys. "Parents should avoid court hearings with their testimonies, experts, and the adversary process. The traditional adversary process forces people to choose sides rather than negotiate. The idea, however disguised, is to compete and win. Despite many advances in the family courts and family law, the best advice is to do as much as you can to settle the issues, especially about the children, out of court" (Johnson 50).
Second, parents should know the laws. This is particularly important for those who represent themselves in court, called In Pro Per. Parents must be aware of their rights, their children's rights and family law. In relation to the Superior Court of California, County of Alameda, "California uses legal labels such as sole custody, physical custody, joint custody and visitation". It is important to understand the distinction between the different legal labels.
According to California's Family Code Sections 3000-3007, "the terms primary custody, sole custody, and sole physical custody usually mean that one parent has all, or nearly all, the responsibility and authority for the children". Sole legal custody is a term used for decisions made about health, religion and education. Joint custody and shared custody are terms used to define the division of the authority and responsibility by each parent to raise a child. However, it does not mean that all decisions or time is equally shared. "Joint custody does not mean equal time. Most legal interpretations of joint custody are that each parent is significantly involved in raising their child. It does not have to mean equal time. Although an equal division of time is preferable, and more common, an equal division of time occurs in only a small percentage of families" (Ross 26).
Visitation can take many forms, including reasonable visitation, which dos not specify exact days and times, and scheduled visitation, which is more precise. Reasonable visitation allows the parents to create their own visitation schedule. It does not specify days and times. Court-scheduled visitation specifies which days and time the parents have the children. The order is very detailed. The impact of a stable visitation arrangement is more positive than the frequency of visits. "Children who have regular visitation arrangements for up to three years following their parent's separation do best and are more competent socially. Families who establish schedules in the first year of separation are more likely to maintain them" (Ackerman 97).
Responsibilities for children are usually divided into two categories: legal and physical. Legal custody is the right to make major decisions about the children. The parent granted legal custody is the guardian of the children and will make important decisions about the children's health, education, religion, and welfare. Physical custody is the right to have the children live with the parent.
Legal and physical custody are further divided into two more categories: sole and joint. Sole assigns the right to one parent exclusively, while joint shares the right between the parents. The advantage of sole legal custody is that it may reduce parental conflict by clearly establishing who has authority to make decisions. The disadvantage is that by making one parent solely responsible for the child, the other parent is reduced to being a visitor. Sole legal custody may be appropriate when one parent is too unstable to make basic decisions for the children. Joint legal custody requires both parents to share information and must consult and agree on issues regarding the children's health, education, religion, and welfare. The scope of the issues may be stated in the custody order or may be left undetermined.
"California, which has always been a leader in matters of family law, enacted a Joint Custody provision in divorce laws a number of years ago. By 1986, 33 states had followed suit and in most states it is now the preferred option. Courts are free to order joint custody today, even if one parent opposes it" (Lansky 122). Physical custody is the right to care for the children on a daily basis. As with legal custody, physical custody can also be assigned solely to one parent, or shared between them. Sole physical custody, also known as primary physical custody, usually means the children live primarily with one parent, and that parent is primarily responsible for supervising their daily activities. Joint physical custody shares the daily child-rearing decisions between both parents. Under joint physical custody, the children typically spend a more equal time with each parent. The advantage of joint physical custody is that the parents will have frequent contact with their children.
"Parents who jointly make parenting decisions about their children are the parents who, fortunately, feel the least amount of unfairness, and for whom custody arrangements work best. Court decisions about custody are necessary only when the parents can't agree" (Lansky 124). When parents dispute custody, the court may order a custody evaluation to help make the custody decision. Custody evaluations are often ordered when one parent accuses the other parent of harming the children. The purpose of the evaluation is to assess each parent's ability to be a parent, and to assess the best interests of the children. Custody evaluations are conducted by mental health professionals, typically a psychologist or psychiatrist who specializes in child psychology. The disadvantage is that the evaluator may be incompetent and make a devastating evaluation. The quality of the evaluation is crucial and plays a significant role in the final custody decision. "The judge follows the recommendation of the custody evaluator at least 86 percent of the time in permanent custody disputes, and 99.9 percent of the time in temporary awards of custody pending settlement or trial of the case" (Garrity 51).
Family law can be complex and demanding. The decision to be represented by an attorney or to self-represent is up to the parent. Attorneys can both litigate and negotiate. A good attorney will facilitate negotiations out of court, with the other parent's attorney, keeping the case from becoming more costly and public. The most successful attorney is one who knows how to promote a good agreement out of court, not the one who is constantly in litigation.
Referrals from friends and business acquaintances are the most common ways to find an attorney. A parent can also check the phone book or his local bar association for referrals. The parent should ask for an appointment to interview the prospective attorney. There may be no charge for a half-hour consultation. It is best, if time permits, for the parent to interview at least three attorneys. The parent should feel a rapport and trust with the attorney and should know how the attorney feels about divorce, joint custody, and child support. The parent should ask about the monetary range for a case similar to his or hers and should ask about fees and billing procedures. There are flat fees, percentages, and hourly fees. The parent will be billed for phone calls, correspondence, court time, and time talking with the opposing counsel. Never should a parent share an attorney with his or her spouse. It may seem less expensive, but in the long run, it will not be. It is also illegal in the state of California.
Even when a parent has an attorney, s/he still has to do a lot of work. The attorney cannot be expected to know all of the answers, take over all of the unpleasantness of the child's other parent, or change the other parent's behavior. In addition to attorneys, it is best to talk to friends and counselors about the pros and cons of the law, legal labels, and parenting arrangements.
A parent In Pro Per retains control over the decision-making process. After all, it is the parent, not the attorney who has to live with the court order. When the parent allows another person (such as an attorney) to make the decisions, the parent loses his or her ability to influence the outcome. "Often, an attorney will apply a "one size fits all" strategy that may not be suitable for the parent. Since every family is unique, the parent is the only person who can accurately say what is best for his or her children" (Oddenino 79). No matter how great the intentions are the attorney cannot fully relate to the parent's situation. In such case, it is best for the parent to represent him or her self.
To aid a parent who is In Pro Per, many legal forms can be filled out online. EZLegalFile, http://www.ezlegalfile.com/index.jsp, is a website with an interactive program that helps parents fill out the forms necessary to request or respond to papers for a variety of legal issues, including Family Law. The parent first selects the county in which they live then follows a tutorial for information on starting a child custody proceeding or responding to legal papers the other party may have filed. After the parent follows the website's wizard program and answers the appropriate questions, the appropriate forms are completed by the program and can be printed out for the parent to take to their local courthouse for filing.
The Uniform Child Custody Jurisdiction and Enforcement Act defines a child custody proceeding as a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for dissolution of marriage, legal separation of the parties, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.
The initial forms a parent must file, when initiating a child custody proceeding, are an Order to Show Cause, Application for Order and Supporting Declaration, a Summons for Petition of Custody and Child Support, an Income and Expense Declaration, and Proof of Personal Service. There may be other forms depending on the nature of the parent's divorce and whether there are any allegations of domestic violence. The person who initially files the family law documents becomes known as the Petitioner and the child's other parent becomes known as the Respondent.
An Order to Show Cause is used when an order pending hearing (such as a temporary order) in a divorce, parentage, or other family law case is sought, and the respondent has not been served with the summons and petition in a family law case. A notice of motion is used to change prior orders, and for initial orders after service of the summons and petition when no order pending hearing is sought.
An Application for Order and Supporting Declaration is a form, which tells the court specifically what the Petitioner is requesting. It specifies how much time the Petitioner is recommending that the Respondent have with the minor children and whether or not the Petitioner is requesting Child Support. A parent who would like to set a court date for a hearing in front of a judge must write a Supporting Declaration. The Supporting Declaration tells the court what the parent wants and why. It is a statement, which explains the issues of the parent's case. The court reads all paperwork prior to the parent's hearing date. Because of the large number of cases before a court, the judge cannot always allow ample time for both parties to fully explain their case verbally. Therefore, for each request a parent makes, s/he must provide specific facts, which would support the decision that the parent wants the court to make. Headings are recommended, with spaced lines between separate issues. The parent must consider the important facts that he wants the judge to know.
A Summons for Petition of Custody and Child Support must also be completed and filed with the court. After the Summons is filed it is served, by a third party, to the Respondent. If either party is requesting Child Support from the other party, then a Child Support Case Registry Form must be completed. The information on this form is included in a national database, which among other things, is used to locate absent parents. When a parent files a court order, s/he must complete the Child Support Case Registry Form and file it with the court within ten days of the date the parent receives the court order. If any of the information on the Child Support Case Registry Form changes, the court must be notified within ten days of the change. The form is confidential, and unlike the rest of the forms in a Family Law case, is not filed in the court file, meaning it will not be seen by either the Petitioner, the Respondent, or either party's attorneys. It is maintained in a confidential file with the State of California.
An Income and Expense Declaration supports the Petitioner's Child Support Request and is used by the court to determine how much child support should be granted, and to which party. When filing an Income and Expense Declaration, three copies of the person's last three pay stubs, or a recent profit and loss statement if the person is self-employed and/or owns any rental property, must be attached.
Proof of Personal Service indicates that a person, who is not a party to the action, and not protected under any orders, served specific documents to the other party, either the Petitioner or to the Respondent. The form indicates what documents were served, how they were served and by what means they were served. The person to be served can be served either in person or by mail. A person who is 18 years or older must serve the documents. The person who served the papers, signs the form and the form is filed with the court.
There are many fees and court costs involved with filing documents and appearing in court. The fees vary from county to county, and in some cases, can be waived if the parent can prove financial burden. In most cases, the petitioner or the respondent asks the other party to reimburse them for their court fees necessitated by the appearances in court. It is up to the judge to determine whether the fees will be reimbursed and to make the fee schedule.
"When considering a custody arrangement it is important to note that an all-or-nothing parenting arrangement is usually not the optimum situation for a child, or for the parents. It is best to find a way to share or divide the responsibilities" (Shaw 68). According to California Family Code Section 3020 (a), "it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child".
There are different custody arrangements, each with it's own strengths and restrictions. Although the court will most likely decide the custody arrangement, parents can influence the court's decision by taking an active role in negotiating issues and by knowing the laws. When parents stay out of court and work out custody arrangements amongst themselves, custody becomes simple and it becomes easier to provide continuity in their children's relationship with both parents.
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