Is A Custody Plan Necessary If You Just Separate?
When married partners get a legal separation, they are not divorced, but they are no longer married either. That usually means they live at separate locations, and their children must travel back and forth to see them both. This can potentially cause additional hardship to children who are already going through the painful process of having their parents split up.
The State of California has a keen interest in the welfare of its children. So California law prioritizes the welfare of children when couples separate by requiring there be a plan in place that is structured so that children are able to spend time with each parent on a schedule and with a minimum of disruption in their lives.
The family law attorneys at The Law Offices of Steven M. Bishop work with separating or divorcing parents to develop custody plans that promote the best interests of the children and provide parents with workable custody arrangements.
What Happens When Partners Legally Separate
The process of legal separation in California is very much like the process of divorce, except that certain legal rights and responsibilities between the separating couple remain in place when a separation is final. Like divorce, the following are determined in legal separation:
- Property division
- Payment of debts
- Support payments
- Child custody and visitation
Separated spouses are not free to marry others and still have the rights granted to married couples to inherit or to bring a wrongful death claim. Unlike divorce, it only takes a motion to the court to remove the separation order and resume the marriage.
Why Married Couples Might Choose Separation Instead of Divorce
There can be practical as well as economical reasons for partners to want to split physically while still remaining connected legally. One spouse may need or want some benefit or right only granted because of the marriage, such as:
- Beneficial tax status
- Access to healthcare or retirement benefits
- Financial support
- Social security benefits
Couples who seek to separate but do not meet the residency requirements necessary to get a divorce may seek a separation and later convert it to a divorce. For partners who choose not to divorce, a legal separation does protect each person’s financial interests from the actions of the other.
Child Custody in Legal Separation or Divorce
Custody plans in California are also called ‘parenting plans’ or ‘custody and visitation agreements.’ California requires parents to create an agreement concerning how they plan to parent their children after they separate. Custody plans must specifically address two components of custody with the best interests of the child or children in mind.
- Physical custody – How much time will a child or children spend with each parent?
- Legal custody – How will decisions affecting the health, education, and welfare of a child or children be determined?
There is a legal presumption that joint custody by both parents is in the best interests of a child unless evidence demonstrates that a different custody arrangement should be made. A parent who does not have custody of a child or children at least half of the time will normally be granted visitation rights as agreed upon by the parents or as ordered by the court.
Once an agreement is reached between parents, it will be reviewed by a judge before it can be finalized and become an order. Custody plans need to demonstrate that care was taken to consider the best interests of each child, and every attempt was made to formulate an arrangement with those particular interests in mind. Things to consider when creating a custody plan include:
- Meeting a child’s basic needs for support and guidance, food, medical care, and rest
- A child’s age, personality, experiences, and abilities
- A child’s ties to a school or community
- A child’s relationship with each parent
- Creating a schedule that is consistent and establishes a routine so a child has structure and can feel secure
- Try to anticipate what might interfere with the plan – such as unexpected events – and allow for flexible solutions as necessary
In joint custody plans, it is typically agreed that both parents can have access to information about their child, including medical records. Parents usually also agree that each can freely contact their child, and they are not prohibited from contacting each other.
What Happens When Separating Parents Cannot Agree on a Custody Plan?
When parents are not able to agree on custody or visitation issues, California law requires the parties to participate in mediation to try and resolve their issues prior to a court hearing. Also referred to as ‘child custody recommending counseling,’ parents meet with a Family Court Services (FCS) counselor who tries to help them come to an agreement.
Parents are usually seen together unless there is a restraining order in place or domestic violence is alleged. Child custody recommending counseling deals only with disagreements relating to custody and not to issues dealing with financial matters, support payments, or property division.
When the process is complete, the FCS counselor lets the court know what was agreed upon and what wasn’t and makes a recommendation to the court about how the disputed issues should be resolved. The judge will review the recommendations but has the authority to make the final decision.
Getting to the Best Custody Arrangement for Everyone Involved
People who are going through separation or divorce are not happy. It is a difficult time in the lives of parents, and it is an especially difficult time in the lives of children. It is a time of great disruption and uncertainty. Creating a plan for children to spend time with both parents in a structured and consistent way is the best means to help children move past the trauma and adapt to a new normal.
The Law Offices of Steven M. Bishop has been helping parents develop custody plans in the San Diego area for more than 40 years. The firm’s family law and divorce attorneys encourage parents to cooperate by finding solutions that are sustainable and provide the optimum benefit for the children. Call 619-724-4148 to schedule a free telephone consultation or contact a San Diego family law specialist here.