Child Custody and Visitation

Carlsbad Child Custody Lawyers

The best interests of the child are paramount in determining custody and visitation agreements. At Fischer & Van Thiel, L.L.P., we put the children adn their relationships with their parents first and encourage our clients to share that approach. Children should not become a “pawn” in negotiating a divorce agreement. Our California family lawyers represent clients from a legal perspective, free of emotional elements. We will not advocate for a parent seeking “revenge” upon the other parent and we will not tolerate or allow an opposing party to use the children as a tool to advance their own gains.

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Carlsbad Child Visitation Attorneys

Sons and daughters divorce of have the right to frequent contact with both parents who are nurturing and focused on their well-being. Divorce is disruptive enough in their lives without parents fighting or one parent absent from their lives. Countless psychologists have studied children being raised by one parent. Issues arise as they grow up with only a mother or father. The involvement of both parents as their children grow up is paramount.

Securing legal representation for child custody agreements as part of a divorce puts you on a level playing field. One side will likely be more domineering, if not bullying. Also, mistakes can be made that will be difficult to undo. Michael Fischer and Craig Van Thiel possess comprehensive experience in this area of the law and attend to every detail, getting it right the first time.

At Fischer & Van Thiel, L.L.P., we represent mothers, fathers, grandmothers and grandfathers fighting for a strong presence in the lives of their children. Divorce provides enough change for sons and daughters. Parenting time agreements negotiated prior to any formal mediation or trial litigation provide peace between two ex-spouses and peace of mind for their children.

For more information or to schedule a free initial consultation with an experienced Carlsbad child custody attorney, please contact us by filling out our online intake form or calling us at 760-722-7669.

Q & A With Fischer & Van Thiel

Do I need an attorney to help me fight for custody?

My advice would be absolutely. It our firm’s opinion that child custody is, if not “the”, then one of the most important aspects of divorce. The ramifications are so great that you would be foolish to try to do it on your own. A custody battle has different “showings” that must be made depending on how you handle it in the best interest of the child but there are some different factors that come into play depending on the end result you want to achieve. Whether it be a move away or a straight custody agreement, what the status quo has been in the past, and what the situation is you are looking for going forward are just a few of the concerns that must be taken into consideration.

A bad decision or bad ruling in child custody takes a long time to recover. You cannot walk into court the next day and tell the judge that you want to talk about this again. And time lost with a child can never be recovered. You never get your child’s first birthday, second birthday, first Christmas, first hit in baseball to do over again. You can possible lose that day or event and never get it back The ramifications are just too severe to come out with a bad result and try to fix it in the future. It needs to be right the first time. That is where a good attorney is important as they are there to initially, if possible, negotiate an agreement that is acceptable to all the parties and, if not, to have the documents in place for the judge to make a decision that is in the child’s best interest and is acceptable and good for both parents.

How can an attorney help mediate the terms of custody if my ex and I cannot be civil?

It definitely makes it more difficult. Hopefully we have two parties who are willing to look at the other side of the coin, so to speak, for the sake of their children. If we have that, we can help mediate an agreement by talking to the parties, talking about what the status quo has been in the past; talk about what each party feels is in the best interest of the child, what visitation they would be happy with. Then we talk to the parties as to our experience in what the courts feels in these certain circumstances, and try to keep the parties focused on the big picture, which is what is best for their children. If they can do that, usually the parties can come to an agreement. The Courts prefers that because when it is agreed to by the parties there is a historical record of the agreement being adhered with less turmoil than orders that are made by the court in which both parties feel they have been beat up.

When we have a severe situation where the parties cannot be in the same room together, oftentimes judicial determination of custody is the best. Of course, the parties not being civil is a big factor to the judge. If one parent in particular is not willing to co-parent and be part of the process, that certainly will not be viewed very favorably by the court, and will certainly will be a factor considered in possibly giving the other parent primary custody of the children. Generally, the court wants both parents to be a part of a child’s life. Even bad parents get to be part of a child’s life. The legislature has required the judge to work towards frequent and continuing contact by both parents with their children. Frequent does not mean 50/50; and, contact does not mean it cannot be supervised. In must be in a safe environment and in a manner that is physically and emotionally safe for the child. Studies show that children who grow up without knowing both of their parents have issues later in life, and we, of course, want to try to avoid this by allowing both parents to be a meaningful part of a child’s life.

What is the legal process involved in arranging for child custody?

Generally, one of the parties will file a series of documents, or pleadings, called a Request For Orders (RFO) with the court. The court will then give you two different dates. One is called FCS or Family Court Services, and the second one will be the hearing itself at which, if there is not agreement, the court will review documents submitted by the parties and make orders that the parties must comply with. At the Family Court Services, the mediator will talk to both parties to discuss what the status quo has been, what each individual’s parenting proposal is going forward and why that is best for the children. If there is agreement, the mediator will write that down and at the hearing that agreement will likely become the order of the court. If there is disagreement, it is FCS’s job to listen to both sides, do additional research, and make a recommendation to the court. There will be a hearing about a month after the FCS date in which you will have the opportunity to argue against or for the mediation report and the court will ultimately make a custody order that will become the order of the court and subject to criminal penalties for failure to abide.

What factors determine levels of custody?

There is a very large number of factors involved. Some of them might be the proximity of each parent to each other; the location of each parent compared to the traditional familial things of the child – his school, his friends, and his extended family. Another factor would be the degree in which each parent is willing to co-parent and cooperate in the parenting of the children as well as the status quo and what would be the least upsetting to the child’s regular schedule. If one parent has traditionally been the breadwinner and been out of the home from 6:00 in the morning until 6:00 at night and the other parent has been the parent who gets the children up in the morning, feeds them breakfast and lunch, get them to school, home from school, gets them snacks, gets them to do homework, that parent, in all likelihood, will have a much higher parenting percentage compared to the parent who has been the traditional breadwinner. If one parent is desiring to move away with the children, it presents a whole different scenario, very complex, and needs to be handled by an attorney who is familiar with move away type cases.

What are the main types of child custody?

California refers to two types of custody. There is physical custody and legal custody. Legal custody is about who is going to make decisions about the child’s education and health decisions. The courts, in most cases, will grant joint legal custody as they want both parents to partake in those important decisions about the child’s life. Physical custody refers to where the child primarily resides. In California people say they want joint custody. They say they want every other weekend with that child and a couple days during the week. In a sense, that is joint custody because you are both sharing the custody. But, under the statutory definition, that would be primary custody to the parent who has the child more than 50% of the time, and the parent with smaller amount of time is referred to as having visitation. So, although it is joint in nature, the court will still refer to it as primary custody to one party and visitation to the party with the lesser amount of time.

How do I prove my ex is unfit to be a parent?

This is a very dangerous allegation to make unless you can back it up. To back it up we would need to have evidence showing that the parent is abusive or incapable of being a parent. Generally, that is achieved by, if there is no direct evidence, having a psychological evaluation. It is a dangerous proposition to make because as opposing attorney, if you made that allegation against my client, I would certainly be inquiring as to how long it has been going on; and, if it was ongoing during the marriage, why you did not see fit to do anything about it during the marriage. The allegations often come across much more as being a spiteful act because of the divorce action. That is not to say that there are not instances of a parent not being fit. It is case by case and you need to discuss your specific fact set with your attorney before you make those types of allegations.

In what situations does the child choose where they want to live?

When making a custody decision, certainly the child’s wishes are a factor to be considered by the court; but, up to about the age of 12 or 13 at the earliest, the judge will be less concerned because they are children who can easily be influenced and are not of the ability to know the ramifications of what they want. The Court will generally take the attitude of “they are children and parents tell them what they will do.” At ages 13 to 18 as they get closer to emancipation, the courts will provide more credit and more authority to a child’s wishes. They will look to the age of the child and the maturity level of the child when making that call. They will not be impressed when the child says that he wants to be at Dad’s house because he has more video games and he can play them all day long. They would find that indicates a very low maturity level, the reasoning non-determinative, and will give it a low relevance. However, you could have the 16 year old who says that his dad and he just do not get along and he hates going there, his mom helps with his homework and she is there for him emotionally. If the child has good reasoning behind it, the courts are going to take that as a compelling argument.

Part of the problem is what to do if you have a teenager who says he will not go. It becomes increasingly difficult to compel him to do visitation. The court would frown upon duct taping the child, throwing them in the trunk or physically dragging him over to the other parent’s house. So, it does become an enforcement issue. We have to listen to the children not only because we want them to feel that they are being heard, but there is also with consideration of the practicality of compelling visitation by a child who does not want to visit one or the other parent.