What is a Child Custody Agreement?
A child custody agreement is a written plan outlining the division of rights and responsibilities between parents. For instance, the agreement usually contains details of the visitation schedule and other parenting decisions. It establishes legal custody and details the rights and limitations regarding parental physical visitation. Additionally, a child custody agreement sets parenting guidelines regarding decision making, mutual domestic household rules, and other parenting specifics.
Providing the best possible care for the child is the number one priority when planning and executing a visitation schedule and custody agreement. Working with a former partner can be difficult and frustrating. Consulting with an experienced attorney in these situations can often make the process more manageable. An attorney acting as a middleman allows for favorable objective planning for the child’s best interests.
California Law Concerning Child Custody and Visitation Agreements
California law establishes that the mother and father of a minor child are equally entitled to the child’s custody. Under state law, LGBTQ+ parents are to be treated the same as heterosexual parents concerning child custody. In instances where one parent is unfit, unable, or unwilling to care for the child, the other parent is entitled to custody. The law also establishes that when determining parental custody, the child’s best interest is the most important determinant.
In divorce circumstances, nullification of marriage or legal separation of parties’ child custody agreements must be made. It is California state law that children are to have frequent contact with both parents (unless it is not in the child’s best interest). In these situations, parties can make their own agreement without the help of an attorney or the court. However, if either party violates the agreement, the court cannot enforce the agreement as it was not a court order. Parties must complete the required paperwork regarding their agreements and file it with the court. An agreement is court-ordered only when both parties sign it, a judge signs it, and filed with the court.
In amicable separation/divorce, parties can work together with or without an attorney to create an agreement and then file it to become court ordered. In situations of unpleasant separations or divorces, discussing your child custody and visitation agreement with an attorney regarding specific court procedures, the precise visitation schedule, consequences for violations, and other details is highly recommended for the best possible outcome for your child. If parties cannot agree upon custody arrangements, California state law establishes that a judge will decide custody based on the “child’s best interests” (Cal. Fam. Code § 3011).
In these cases, a judge will determine custody and visitation after hearings, proper paperwork, and sometimes investigations depending on the circumstances.
Types of Child Custody
In the state of California, there are two types of custody “physical custody” and “legal custody”. California state law establishes that joint custody is typically in the child’s best interest, whether that means shared legal custody and shared physical custody or sharing a combination of both.
Joint Legal Custody
California state law establishes that joint custody is typically in the child’s best interest. In cases of joint legal custody of a child, parents “share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child” (Cal. Fam. Code §3003). Under California state law, granting joint legal custody does not automatically grant joint physical custody of the child (Cal. Fam. Code § 3085.).
Legal custody responsibilities and rights can include: where the child goes to school if the child will participate in religious activities, and if and when a child should receive medical care, when and if the child can travel if the child will participate in sports or school activities.
In most cases, parents will have joint legal custody of the child following divorce or separation unless the court decides otherwise. Situations, where parents will not have joint legal custody of the child, can include:
- If parents cannot make decisions together
- One parent is deemed unfit by the court
- One parent is unable to make major decisions regarding the welfare of the child
- It is in the child’s best interest for only one parent to have sole legal custody
Joint Physical Custody
California state law explains that “Joint physical custody means that each of the parents shall have significant periods of physical custody” (Cal. Fam. Code §3004). In these cases, one parent has legal custody of the child, the decision-making authority, and the other parent does not but still has visitation rights. In circumstances where parents share physical custody the details of the arrangements are included in the visitation schedule.
Sole Legal Custody
“Sole legal custody” means that one parent shall have the right and the responsibility to make the decisions relating to health, education, and welfare. The other parent has no legal right to the child and no decision-making authority. (Cal. Fam. Code §3006).
Sole Physical Custody
In cases where the parent has “sole physical custody” of the child, the child resides only with one of the parents. (Cal. Fam. Code §3007). Typically, the other parent is uninvolved in the child’s life in these cases.
What should be included in a Child Custody Agreement?
The child custody agreement made between parties needs to outline the visitation schedule, and the legal rights and responsibilities of each parent. Each agreement is custom to the family and can undergo changes as the child ages and if circumstances change. Things that should be considered and included in a child custody agreement include:
- The visitation schedule – how and when the child will visit with each parent
- The decision making authority of each parent – if mutual consent is needed for certain decisions regarding the child
- The children’s personal preferences – where the child would like to spend their time
Essential Things to be Included in a Child Custody Agreement
The Visitation Schedule
Within a child custody agreement, the visitation schedule establishes when the child will physically be with each parent—visitation centers around joint physical custody. Plans are personalized for the child’s needs and the parents’ specific situation. Additionally, joint custody does not necessarily mean 50/50 visitation. The schedule is created to reflect the child’s best interest. Every family is different; therefore, agreements will vary from case to case.
Visitation schedules should outline where the child will be during the week, weekend, holidays, summers, and more, with respect to the parents’ households. Schedules include which parent will be responsible for certain activities such as school sports, religious activities, homework, and so on. Visitations schedules should also detail the transportation and pickup/drop-off times when children change physical custody. Visitation schedules should also include conditions if either parent violates the agreement.
Visitation schedules can be as detailed or as simple as the parties desire. Visitation schedules can change as children age or if one parent relocates amongst many other situations. Consulting with an experienced family lawyer can provide invaluable knowledge regarding visitations schedules to ensure the best outcome for the children involved.
Decision-Making Responsibilities
The decision-making part of the child custody agreement outlines how parents will make decisions regarding the child’s health, education, and overall welfare. The custody agreement includes specific circumstances where mutual consent is needed when making decisions regarding the child. For example, a custody agreement may require mutual parental consent for applying for a child’s passport or medical procedures. In not specified situations regarding decision-making, either parent can act as the child’s sole parent. Typically these nonspecific decision-making situations align with the child’s visitation schedule, for example, registering a child for an activity during one’s visitation time.
Children’s Input
Children can address the court regarding their custody and visitation agreement between their parents. Children 14 years or older who wish to address the court are allowed; children younger than 14 years old can also speak to the court if it is in their best interest.
Other situations that can be addressed
- External child care requirements, for example: if either parent needs child care while the child is in their physical custody, they are to offer the other parent time with the child before finding other child care.
- Communication requirements between parties, for example, “no using children as messengers.” Parties should communicate directly with each other and not use children to deliver messages.
- Limiting exposure to cigarette and or marijuana smoke and other substances, for example, the child is not to be exposed to secondhand smoke and or alcohol while in the custody of either parent.
- For children’s belongings and clothing, for example, each parent is responsible for keeping clothing for the child, so children do not have to travel between households with extra clothes.
Contact Pride Legal
If you or a loved one has any concerns about creating a child custody agreement we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.