Despite the publicity surrounding very contentious custody battles, many divorcing couples with children end up with a court order for joint physical custody and have to figure out the details of sharing time with their kids. As with most things, it helps to get it all spelled out in advance — and in the custody order.
Joint physical custody means simply that both parties will have significant periods of physical custody with the child. The California Family Code anticipates that “joint physical custody” orders will provide sufficient specificity to allow a party to enforce custodial time, if necessary. See Fam C §3084.
These types of orders are often referred to as “week-on, week-off” arrangements but can also be structured in any way that effects a truly equal timesharing. California Judicial Council Forms FL-341, FL-341(A)-(E) can be very helpful in focusing parents on creating a specific and detailed parenting plan.
To make sure that the final order covers all the bases and contingencies, attorneys should be ready to suggest, whether in court or in settlement negotiations, solutions for many potential problems, even if they may seem minor at the time. For example, some cases require an order that the parents transport the children only in approved car seats. Other cases may require an order that homework assignments or sporting equipment be exchanged with the children.
It also is important to consider how easy it will be for a law enforcement officer to interpret the custody order when necessary. For example, if an order states only that the parties are to have custody on “alternate weekends,” the officer may have no way to determine which party is entitled to a custodial weekend. In addition, if the order doesn’t state a time for the exchange, the officer may not be willing to enforce the custody exchange, even if the time the assistance is sought has been the “established” time for exchanges for a period of months or even years.
With those considerations in mind, here are some important areas to consider when detailing the custody arrangement:
- Specifically describe the regular, nonholiday timeshare. This is the day-to-day arrangement, often during the school year, and without specific reference to holidays or any special events.
- List the holiday timeshare. Parties usually will want to designate alternating arrangements for custodial timesharing during holiday periods, so as to allow perhaps for longer custodial periods in anticipation of visits with extended family or out-of-town travel. It is important to allocate holiday time between the parents, so that special occasions can be shared. Discuss with your client which events (e.g., birthdays and school and religious holidays) are most important and start with an allocation of that time to make sure they are accounted for in the judgment.
- Allocate time/day of exchanges and specify other exchanges aspects. To make exchanges as conflict-free as possible, be specific about who may conduct exchanges and possibly who may or may not be present at custodial exchanges; how exchanges may occur, i.e., at a neutral exchange site or curbside in front of their residences; whether exchanges must be monitored (if monitoring of custody is to occur, exchanges must also be monitored); and that there will be no verbal conflict during exchanges.
- Right of first refusal when custodial parent not available for period of time. This is an important provision allowing the noncustodial parent to have additional time with the children, when possible, if the alternative is for the custodial parent to leave them with babysitters or in day care for a period of time. Depending on the child’s age and other factors, the time period that would trigger a custodial parent’s obligation to notify the other parent that he or she will need to hire a babysitter or utilize a day-care facility could range anywhere from four hours to 24 hours. Make clear that this “right of first refusal” does not refer to day-to-day childcare used while a custodial parent is at work.
Orders for a truly joint physical custody arrangement are becoming more common. Make it easier on everyone involved — particularly the children — by getting all the details in the order.
For everything you need to know about child custody issues, turn to CEB’s California Child Custody Litigation and Practice. Also check out CEB’s program Hot Topics in Child Custody, available On Demand.
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