Child Custody and Visitation Information

Visitation relates to the parenting time the non custodial parent spends with the child.  Reasonable visitation rights must be awarded to a non-custodial parent unless it is shown that the visitation would be detrimental to the child’s best interest.  Child custody and visitation orders may be modified upon a showing of change of circumstances and a party may petition to return to mediation after a 6 month period of time.  A party may return to mediation by filing a Petition for Mediation or by filing a motion.  In Sacramento County, the filing of a motion to modify custody automatically will result in a scheduled appointment with Family Court Services.  This process is referred to as “front loaded” mediation.  

Child custody is among the most conflicted, costly, and emotionally charges areas of Family Law. In California child custody has two parts: Physical custody, which concerns with whom the child will reside, and legal custody which relates to the rights and responsibility to make decisions regarding the health, education and welfare of a child. There are two types of custody which may be awarded to a parent: Sole custody and joint custody. Typically the Court will award joint custody absent of justification otherwise. According to statutes, custody must be awarded according to the child’s best interest, however, as party’s frequently realize, this is a subjective analysis based on the perspective of the Court and mediators involved in the case. In determining the child’s best interest, the Court is required by statute to consider a history of domestic violence/ abuse or other factors such as habitual or continual use of controlled substances or alcohol. The child’s preference is considered when the child is a sufficient age and capacity to form an intelligent preference. However, the child’s age alone is not determinative of whether the child’s interest must be considered and weighed. 

Mediation of custody issues is required when it appears that an issue of custody or visitation is contested.   The purpose of mediation is to reduce any acrimony between the parties, develop an agreement which ensures the child has close and continuing contact with both parents and to effect settlement regarding visitation.  

Sacramento County is a reporting county, meaning that when the parties cannot reach an agreement, the Mediator may prepare recommendations to the Court, which the Court may adopt as an order.  The mediation can be through Family Court Services (FCS) or done privately.  Private mediation usually requires a retainer of approximately $2,500.  FCS mediation is relatively inexpensive, but the old adage “you get what you pay for” all too often applies.  FCS has recently been audited by the State of California and has been found to have unlicenced Mediators and Mediators with inadequate training.  Additionally, Mediators with FCS have been documented to withhold important information from their reports related to child abuse and other issues affecting the health, safety and welfare of the children.  Due to budgetary constraints little if any corrective measures related to FCS has been implemented thus far.  The problems apparent with FCS highlights the importance for a party to have representation prior to and throughout the mediation process, as there are steps that may be taken to protect a party’s rights during mediation.  If a party contests the recommendations issued by the mediator the party may request and the court must grant an evidentiary hearing to allow the party to examine the mediator.

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This page was last updated: October 7, 2015
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