Determining custody and visitation of children can be one of the most crucially important aspects of family law. It is often the most sensitive, delicate topic of a San Jose divorce, with a significant impact on the lives of both parents and children.
California state law dictates that courts ultimately decide custody based on the best interests of the children. However, parents don’t often agree on what is in their children’s best interests, leading to contentious litigation.
If you are involved in a custody dispute or a have children and are facing a divorce in San Jose, please contact Schoenberg Family Law, P.C. immediately to discuss your case. Our compassionate legal professionals understand the seriousness of your situation, handling your custody issues with the delicacy and importance you deserve.
San Jose Child Custody Attorney Quick Links
- Why Choose Us?
- Determining Child Custody in CA
- Physical vs Legal Custody
- Visitation Orders
- Supervised Visitation
- Effects of Parental Substance Abuse on Child Custody
- Custody Agreements in Domestic Partnerships
- Young Child Custody Agreements
- Custody Mediation Process
- Contact Our Team of San Jose Child Custody Lawyers
We Sympathize With all Child Custody Issues in San Jose, CA
The experienced lawyers of Schoenberg Family Law, P.C. advise residents of San Jose and surrounding cities in Santa Clara County. We understand that cases involving custody can be highly contentious, so we approach all proceedings with open communication and transparency in mind. We assist those in the separation process with all custody-related issues, including:
- Evaluations of custody rights
- Visitation rights
- Paternity disputes, including DNA testing
- Child support
- Parental alienation
- Parent relocations
- Child abductions
We want the best outcomes for both you and your children, ensuring their health and safety are prioritized above everything else.
Determining Child Custody in San Jose, California
The state of California acknowledges a distinct difference between physical custody and legal custody.
- Physical custody refers to where children live.
- Legal custody refers to decision making – the rights of parents to make crucial choices regarding the health, education and welfare of their children.
Physical and Legal Custody
Physical custody describes where the child physically lives and stays. The family law system operates on the belief that a child should spend time with both parents. In cases where this is possible, a judge will divide physical custody between two parents after a divorce. The physical custody arrangement can look very different depending on the couple and the situation. It may not be a 50/50 split. One parent might have physical custody on the weekends only, for example.
Legal custody grants a parent the authority to make important decisions for a child, such as relating to health care, education and religion. A parent with legal custody can decide where a child goes to school and church. The courts will always allow parents to try to work out physical and legal custody together before taking the matter to trial. You and your ex-spouse have the opportunity to create a parenting plan that works for the whole family. You can do this via mediation to try to avoid a custody battle in court.
Visitation Orders and Visitation Rights for Child Custody in San Jose
Most custody agreements in San Jose include visitation. A parent without physical custody may have visitation rights with a child based on the stipulations of the court order. Visitation may be on a schedule the courts assign, or it could be a more general order. Visitation according to a schedule can give children (and the custodial parent) greater stability and predictability.
A visitation schedule is something the parents and courts can come up with together, detailing dates and time slots when the noncustodial parent may visit the kids. The schedule should accommodate holidays, special occasions and family vacations. If a judge grants reasonable visitation, it will not necessarily have a detailed schedule for visits. Reasonable visitation is more open-ended to let the parents figure out a suitable visitation schedule that is flexible. Reasonable visitation will only succeed if both parents can communicate and accommodate one another.
Child Abuse/Supervised Visitation Schedules in San Jose
A judge might not award visitation rights when there is a concern that a parent poses a risk to the child physically or emotionally. In a case with proof or allegations of child abuse, for example, a judge may ban a parent from visiting with a child after a divorce. Without official visitation rights, a parent cannot lawfully visit with or take the child anywhere. In some cases, a judge may assign supervised visitation instead of denying visitation entirely. Supervised visitation involves another adult, such as the other parent or a professional agency, watching the meeting between the child and the abusive or unfit parent.
Supervised visitation might be the right option in a case where the child has not seen the parent for a long time. It can be a positive way to reintroduce the child to the parent without putting the child at risk of physical or emotional injuries. Supervised visitation schedules are usually something a judge will assign, although the parents may be able to work out a schedule on their own.
How Does Parental Substance Abuse Effect Custody in San Jose?
A history of substance abuse – alcohol and/or drug use – is something a judge will consider when making a custody decision in California. Substance abuse could interfere with the parent’s ability to properly supervise and care for a child. It could also increase the risks of domestic violence and/or abuse. The courts will take allegations of substance abuse seriously during a custody case. They may require the accused parent to take a drug test, enroll in a substance abuse recovery program, or talk to a professional to assess his or her ability to care for a child.
If the courts believe substance abuse will impede a parent’s ability to care for a child, they may not grant that parent custody. The parent might only be able to visit with the child under supervision. The courts may reevaluate the situation and change a custody or visitation order in the future if the parent can prove he or she has received treatment or is enrolled in a rehabilitation or counseling program.
In a situation where the courts have already granted one parent custody or shared custody, and that parent begins abusing a substance, the other parent can request a modification of the custody agreement. The courts will investigate to determine if the allegations are valid. If so, a judge might alter a custody or visitation agreement to restrict the parent’s contact with the child until the parent can prove he or she is in recovery. A parent with an addiction may still have the right to supervised visitation. Each case is unique.
Custody Agreements in Domestic Partnerships
Domestic partnerships are alternatives to traditional marriages in California. Both spouses in a domestic partnership may have legal parental rights depending on the situation. If the child was born during a Registered Domestic Partnership, the nonbiological parent will still have parental rights. Both partners will unquestionably have parental rights if the nonbiological parent adopted the child, or if both are nonbiological parents who adopted the child together.
If you are dissolving your domestic partnership, you and your ex-spouse will have to work out a custody agreement. If you cannot work together on an agreement, the matter will have to go to trial as it would in a typical divorce case. When both parents have legal rights over a child, the court will handle the dispute the same way it would for a married couple. It can be more difficult to work out an agreement if one parent does not have legal rights but wishes to have custody or visitation. The nonlegal parent may not be able to obtain a court order but may be able to work out an agreement with the legal parent instead, with a lawyer’s assistance.
Child Custody Agreements With Young Children
When a couple that has an infant or toddler splits up, child custody and visitation can be even more complicated. While today’s courts no longer automatically favor the mother in these agreements, factors such as breastfeeding and sleep schedules might come into play. As with other custody cases, the courts will give the option to figure out custody and visitation to the parents first. Through processes such as mediation, the parents may be able to work out an arrangement they both agree upon to care for a young child. Professionals such as child psychologists may be able to help parents create the best possible custody arrangements.
In general, a parenting plan involving a young child should give the child a predictable schedule. Toddlers should ideally see both parents consistently and have a stable routine. Frequent and continuing contact between a young child and both parents allows the child to build a relationship and strong attachments to both, rather than favoring one (the primary caregiver) over the other. Parents may have to modify their custody plan as the toddler gets older and his or her needs change. Working together with help from a mediator can be the best way to create a positive parenting plan for a young child. Otherwise, the courts will have to intervene.
Custody Mediation Process in San Jose
Mediation in California is a common way for divorcing parents to work together in a productive environment for the good of a shared child. Mediation involves both parents, their attorneys (in some cases) and a third-party mediator. The mediator will not have the same powers as a judge during a custody trial. The mediator is simply there to facilitate productive conversations and compromises between both parents.
During custody mediation, you will both discuss possible solutions with open-minded attitudes. Ideally, you will be able to reach a compromise and draft a parenting plan together during mediation. Then, if a judge agrees your plan meets the child’s best interests, the judge will sign off on the agreement. Mediation allows you to avoid court and remain in control of your custody or visitation agreement in California.
Coming to a Child Custody Agreement in San Jose
Due to the large number of custody possibilities within these options, it can often be difficult for parents to come to a consensus arrangement. When this happens, California law states that both parents must undergo mediation in an attempt to resolve any conflicting opinions. If the parents cannot come to a full agreement, a judge may be ordered to make that decision instead.
Mediation can be an exhaustive process that is often stressful and emotionally taxing. At Schoenberg Family Law, P.C., our compassionate child custody attorneys can give you invaluable counsel throughout the mediation process. With our mix of experience, knowledge, and compassion, we strive to act in your and your children’s best interests.
Contact a Professional San Jose Child Custody Attorney Today
If you are experiencing issues or disputes regarding your child custody agreements, please contact the legal professionals at Schoenberg Family Law, P.C. today to discuss your case. For more than 35 years, we have provided advice and counsel for clients in San Jose and throughout Santa Clara County.
We understand how tumultuous and emotionally charged the custody process can be, and we do our best to act with your and your child’s welfare in mind. We are respectful of your needs and maintain an open line of communication to ensure there is full transparency on our end for peace of mind.