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Child Custody and Visitation

General California Child Visitation Information

In making a child custody order between the parents in California, the court must also grant the other (noncustodial) parent "reasonable visitation rights" . . . unless it is shown that visitation would be "detrimental to the best interest of the child."  Because of the importance placed on "frequent and continuing contact" with both parents, an order completely withholding a parent's visitation privileges may issue only upon a finding that any form of visitation with the parent would be "detrimental" to the child's best interest. If the custody order does not provide for parent visitation rights but does not expressly withhold such rights, the noncustodial parent has an implicit right to "reasonable visitation." Trial courts generally have broad discretion in defining a parent's "reasonable visitation" rights and establishing a visitation schedule. Subject to a few statutory limitations (below), the sole guideline is the child's best interest.

Factors Considered By The Court In Making California Child Visitation Orders

In all cases, child visitation orders must accommodate the paramount policy of assuring the child's health, safety and welfare and, to the extent consistent therewith, the policy preference for "frequent and continuing contact with both parents", except where such contact would not be in the child's best interest pursuant to the California Family Code § 3011 factors.   Beyond this general framework, courts consider such practical matters as the child's age, maturity and special needs, the parent's physical proximity to the child's primary residence and, where appropriate, the child's own preference.

Improper Considerations In Making Child Visitation Orders

Parent visitation rights must be adjudicated independently of other issues before the court. Notably, a visitation order may not be tied to or conditioned upon the payment of child support . . . which has no bearing on whether parental contact would be detrimental to the child.  Additionally, a parent's absence or relocation from the family residence cannot be considered in determining visitation (or custody) provided (i) it lasted only a short time and, during that time, the parent demonstrated an interest in maintaining custody or visitation, or maintained or made reasonable efforts to maintain regular contact with the child and demonstrated no intent to abandon the child; or (ii) the absence or relocation resulted from actual or threatened domestic or family violence by the other party.   Furthermore, visitation rights cannot be restricted solely on the basis of a parent's "unconventional lifestyle," the parties' "opposing moral positions" or the "outright condemnation of one parent's beliefs by the other parent's religion" . . . unless there is evidence these factors are detrimental to the child. "In the absence of any indication of harm, [restrained visitation] is unreasonable and must be vacated." [Marriage of Birdsall (1988) 197 Cal.App.3d 1024, 1031, 243 Cal.Rptr. 287, 291.]

Decision Making During Visitation Periods

The right to make ultimate decisions regarding the child's upbringing belongs to the parent with "legal custody"; decision-making authority does not shift between parents during visitation periods unless they have "joint" legal custody. [See California Family Code §§ 3006 (sole legal custody), 3003 (joint legal custody)]

Child's Refusal To Visit

Implementing a visitation order necessarily turns upon the custodial parent's ability to make the child available for visitation. A custodial parent probably has sufficient control over a child of "tender years" to compel the child to visit with the other parent under the terms of the court order; and the custodial parent's failure to comply would thus be punishable by contempt.

But the rule is otherwise as to teenagers. Technically, teenage children remain subject to their parents' control until age 18 or marriage.  Nonetheless, if a teenage child refuses to visit with the noncustodial parent per the terms of a court order through no fault of the custodial parent, the noncustodial parent is probably left without a remedy. Simply stated, it is unclear how the custodial parent would have the ability to force the child to visit.

California Procedure In Child Visitation Cases:

The parties may - and are encouraged to - enter into a written stipulation (agreement) on visitation issues.

If the parties cannot agree, visitation orders may be made at any time after the filing of an underlying divorce, paternity, or domestic violence action and may be modified at any time until the chilf(ren) turn eighteen. In contested cases, they are most commonly made:

  1. At the time of the filing of the initial documents in a "Temporary Restraining Order"
  2. Within a few weeks of the filing at a hearing on application for "Order To Show Cause"
  3. At the time of trial

Modification Of Child Visitation Orders:

Child visitation orders may be modified at any time before the visitation orders terminate as long as the party moving for the modification can show that there has been a change in circumstances affecting the welfare of the child(ren) since the last order.

Such changes in circumstances include (but are by no means limited to):

  • Change in residence of one of the parents. (This may require a motion for a "move-away order")
  • The desire of an older child to increase or decrease visitation.
  • Evidence of abuse of a child.
  • Alteration of the child(ren)'s school schedule