After Divorce: Custody vs. Control: An Issue in San Diego Legal Separation and Divorce Cases

Many parents are disappointed to learn, sometimes after contested and lengthy hearings in a San Diego Superior Court Room after the Judge makes an order, that an award of physical custody of children does not grant them control of the other parent’s time with the children. California law follows visitation guidelines closely, granting the non-custodial parent a certain level of time with the child. Activities during that time are usually under the control and direction of the visiting parent. There are two types of custody: physical and legal. Decision making is shared with a joint legal custody order in San Diego County.

What if you have serious concerns about your child’s safety and well-being during visits with the other parent? You may have legitimate concerns about substance abuse, psychological issues or neglect. However, the court won’t usually restrict the other parent’s visitation solely upon your expression of concern and evidence will need to be submitted. Evidence can consist of police report, criminal records, proof of an arrest, a substantiated finding by San Diego Child Protective Services, witnesses and many other forms of acceptable proof to the San Diego Judge. The Court normally does not speculate in making order without evidence.

It is crucial to any outcome of success and may be mandatory to document the basis of those concerns before raising the issue in court. For this type of issue, it may be especially important to have a knowledgeable attorney on your side since the law regarding substance abuse and drug testing, domestic violence and the consequences to custody and visitation and many others are extremely complicated.

For example, suppose the other parent is arrested for public intoxication during a visitation weekend, having left children home alone unsupervised. That incident could support a request to either have visits supervised by a trusted third person or to prohibit consumption of alcohol during visits and also to modify the current custody orders if one exists. The option of appearing in court on an emergency [ex parte] basis is not appropriate unless a legitimate emergency which many Judges feel is abuse, molest or neglect in the custody issues along with arrests, convictions or a flight risk to another country.

Even a simple visitation schedule can lead to disagreements and conflict. One party’s family event may trigger a request to adjust scheduled visitation. Sports and other activities may be scheduled during the other parent’s visiting time. The orders from the San Diego Judge will normally be based on the San Diego Mediator from Family Court Services. The Judges follow the recommendations of the mediator more often than not.

Another issue that sometimes arises is the presence of a new significant other. A custodial parent doesn’t have the right to dictate who may or may not be present during visitation. If the new significant other is a convicted of child abuse or child neglect or there presence is endangering the children in some way, then this is an issue. Unfortunately, emotions are high in these types of cases and it is hard for parents to put aside their own feelings regarding their spouse having a new husband or wife.

Man custody and visitation agreements grant joint legal custody and many others primary physical custody to one parent while legal custody remains with both parents. It is important for you to anticipate possible areas of conflict and incorporate preliminary instructions in the written agreement. For example, which parent will make decisions about the child’s religious affiliation if any? Will one of the parents object if the other consents to the child’s participation in dangerous sports activities? Can the parties agree to adjust scheduled visitation to accommodate special events and activities, or will such requests require resolution by the Court?

Older children, especially, may feel that they share a degree of blame for the breakup of the family. Disagreements that center on the children can have a further negative effect on the child. By trying to anticipate problem areas in advance and properly prepare the settlement agreement, you can attempt to minimize these post judgment issues from arising.

It is also common for children of divorce to play one parent against the other. One grants more privileges; the other buys expensive toys or electronic gadgets. One allows a later bedtime; the other has too many rules. It is important for parents to set aside the adversarial relationship and agree on a basic set of standards. The law is what is in the best interests of your children and not in the best interests of either parent.

By sharing your concerns with your attorney, you may be able to avoid common areas of disagreement, prevent future problems and ensure your child’s health and safety during visits with the other parent. For a free initial consultation, call 858-312-8500 or contact us online.

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