Child Custody and Visitation Agreement
Do We Need a Child Custody and Visitation
It may seem oddly formal to think about a child custody and visitation agreement that will schedule the time that you spend with your kids. However, in any kind of child custody situation, you need one. A visitation schedule helps maintain sanity and stability, for you and your kids. Generally, the process involves sitting down with the other parent and talking about a schedule that works for everyone. In most cases, you should both be actively involved with your children. You’ll want to try to reach an agreement to make sure that happens.
One of the biggest benefits to making a child custody and visitation agreement is that you keep control over the process. The only limit is your creativity. Working out a schedule with the other parent is an excellent first step towards building a healthy co-parenting relationship. This will allow your children to be in the center of your lives, instead of stuck in the middle.
Many people think that having a judge decide their case is better. But, in most situations, the court should be your backup plan. A judge doesn’t know your schedule or your children’s needs like you do. The law limits what a judge can order. If you testify in court, harmful statements are often made. This can damage the co-parenting relationship.
What’s In a Custody Agreement?
There are three basic terms in a child custody and visitation agreement. They are: legal custody, physical custody, and the visitation schedule. The agreement itself should be in writing, signed, and filed with the court. Generally, you should notarize the signatures.
Legal custody has to do with making parenting decisions related to the health, education, and well-being of your children. Parents with legal custody have the right to enroll their children in school, sign them up for recreational activities, get a passport, make medical decisions, and other responsibilities. If you agree that both parents should share the responsibility of making these decisions, that’s called joint legal custody. If one parent makes these decisions, they have sole legal custody.
Even if you and the other parent agree to share joint legal custody, there are additional details to discuss. For example, who will keep the children’s passports and social security cards? Are there certain decisions that both parents need to agree on, like enrolling the kids in a private school? Or, will each parent be able to make decisions in their household as they see fit? If parents can’t agree, will one parent be the “tie breaker” for medical decisions and the other for educational decisions? Taking time to discuss what legal custody means to your situation makes sense.
Physical custody deals with where the children physically live. Where both parents have about equal time with the kids, it’s called “joint” physical custody. If the children live with one parent and occasionally visit the other parent, it’s called “sole” or “primary” physical custody.
If parents live in different school districts, the children will typically attend the school where the parent with primary physical custody lives. Physical custody should be consistent with your visitation schedule. If you and the other parent have fairly equal time with the kids, having primary physical custody matters less than where one parent has primary physical custody, and has the vast majority of the parenting time.
A visitation plan usually has its own three categories: the everyday schedule, holidays, and vacations. Each of these categories are separate, but they do relate to each other. For example, if you’re regularly scheduled to have the children during Winter Break, but the other parent is scheduled to have the children due to your holiday schedule, which parent gets the children? Or if the schedule says the kids with you for Thanksgiving, but the other parent wants to take them on a cruise, who has priority?
For the day-to-day schedule, you want to think about what really works best for everyone, instead of what other people do. If you or the other parent travel for work, are in the military, or have a non-traditional schedule, you’ll want more flexibility in your parenting plan. If the kids take piano lessons and only one parent has a piano in their home, then maybe that should be taken into consideration.
Holidays don’t have to be based on what other parents do. Think about the traditions in your family and what days are important to you and your kids. Maybe you value Christmas Day and the other parent celebrates Christmas Eve. If you’re a veteran, Memorial Day and Veterans Day may be holidays you value. Make a list of holidays that matter and then define them. Is Thanksgiving the day, or is it the entire school break? Is Mother’s Day the weekend, an overnight, or from 9:00 am until 6:00 pm that day? There is no right or wrong answer – it’s what works for you.
As for vacations, you’ll need to determine the length, the frequency, any restrictions, and the amount of notice needed to give to the other parent. In general, vacation plans you get mirror the other parent’s. It’s natural to want as much time as possible. Just remember that you’ll be missing the children for the same amount of time later on when they’re with the other parent.
Often, the amount of vacation time depends on the ages of your kids and where you plan to travel. If international travel is something you plan to do a lot, then one week increments don’t make much sense. As another example, if you have young children, four weeks without seeing the other parent may be difficult for them. If your kids compete in sports, for instance, availability of vacation time is limited.
As for restrictions, you’ll need to determine if you’re okay with your kids missing school for vacations, or if they can only travel during breaks. Will traveling out of the state require the other parent’s consent? What sort of input would you like regarding the other parent’s vacation plans? How much contact with the non-traveling parent will there be? Luckily, with FaceTime and Skype, it’s easy for kids to stay in touch with the non-traveling parent.
Finally, as for notice, the general questions are: how much advance notice and what details constitute notice? Do you want a different amount of notice for in-state, out of state, or out of country travel? Many parents like to exchange basic travel itineraries, like flight and hotel details. Working out these details now will lead to less conflict. It also will make it so everyone can actually enjoy vacation time with the kids.
How Do We Write Up A Child Custody and Visitation Agreement?
A key step in this process is to make your agreement official by turning it into a court order. Don’t skip it. It creates clarity and ensures that you have a legally binding document that is enforceable. Be sure that your agreement is clear, includes details, and is easily understandable.
A formal child custody and visitation agreement requires specific wording. The language is in Family Code Section 3048. Basically, the Court needs to be sure of two things. One, that your kids currently live in California. Two, that you and the other parent are aware that the order is enforceable. So, if you break it, you could get both civil and criminal penalties. The easiest way to include the right language is to attach your child custody and visitation agreement to form FL-355.
After both parents sign the child custody and visitation agreement, we file it with the court. Once your agreement is filed, you now have an enforceable “order.” This means is that you both legally have to to follow your agreement. This creates consistency and peace of mind for both you and your kids. You have a clear schedule to follow. While you should both feel free to agree to change the schedule, no one can change their mind without input.
At Cornwall Family Law Offices, our lawyers are experienced with all aspects of divorce and family law, including child custody and visitation issues. Contact our office for assistance if you would like to discuss how our attorneys can help an agreement that will grow with your children.