The Law Office of

 Michael M. Yellin

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The decisions regarding child custody and visitation is best left to the parents.  All decisions can become the Court’s order in various ways.  However, if the parents are unable to come to a complete agreement, any issues remaining will be decided by a judicial officer, who has never met the parties or their children.  Deciding where your children will live, and what each parent's role in future decision making involving the child will be, should, ideally, be the result of both parents creating and implementing plans that are right for their child, together.  However, at times, the Court must assist them in this process, or, even decide custody issues in some cases.   Courts must decide what is in the 'best interests' of the children before it, and they do so using various discretionary  factors, including those which identify which parent is the 'primary caretaker', what previous custodial arrangements have been made, if any, and which consider parental fitness.

Visitation is a form of custody available to the 'non-custodial' parent.  In California, the over riding concern is “the best interest of the children” and that the non-custodial parent maintain continuing contact with the children. The courts have wide discretion to create a visitation schedule, but as mentioned before, if the parties can come to a mutually beneficial agreement, the court will most often adopt the agreement and make it a court order.

Both parents are required to support and maintain their children, pursuant to their ability to earn, until their children are at least 18 years old.  The court uses a statutory formula to determine child support.  The formula considers the amount of time each parent spends with the children, and the income of both parties.  The courts can also order amounts as additional child support for such things as un-reimbursed medical expenses, child care expenses, and even private school tuition.

Unlike child support, where the parties are required to support their children, spousal support is left to the discretion of the court because adults are required to support themselves.  If requested, the court is required to consider 14 factors to determine if, to what extent, and for how long, one of the parties is entitled to be supported by the other party.  Some of the factors considered are the length of the marriage, the standard of living maintained during the marriage, and the spouses ability to pay support.

Modification of an existing child support or child custody order is possible under certain conditions, and depends on what is being modified and at what stage of the proceeding.  Modification of a child support order requires a “change in circumstance,” such as a change in income.

Modification of a pendente lite child custody order is possible when "necessary or proper" and in the child's best interests.  However, a final child custody order requires an additional showing of "changed circumstances."

In the event that one of the parties fails to conform to the courts order, the aggrieved party should file a Motion for Contempt.  It should be understood that even if  on party fails to confirm to the court’s order, does not provide an excuse for the other party to disregard that, or another court order.  Also, child support and visitation/custody are not dependent on each other.  If a party fails to pay child support, the other parent is not permitted to refuse visitation to the other parent, and likewise, if a parent refuses to allow visitation with the non-custodial parent, the other party must still pay child support.  The only remedies available are a request for a modification of the court’s order, or a Motion for Contempt.

California prefers that parties in all actions settle their disagreements.  For that reason, the parties may enter into a stipulation, at any time-before or even after a hearing, that is mutually beneficial to both, and will carry the weight of a court order.