The New Frontier in Custody Cases

August 28, 2012

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As we have previously blogged, child custody laws and presumptions have evolved over time in San Diego. Recently, some states, including the Commonwealth of Virginia, are moving toward a new way of thinking when it comes to child custody and visitation. These states intend to eliminate the concept of "custody" all together. Instead of determining custodial rights of parents upon divorce, courts would instead determine "parental responsibilities." This change would reflect a shift in how children are viewed in society. The idea of "child custody" originated when children were still seen as "possessions" to either be won or lost in a divorce proceeding. Just as the term "wife" has evolved, the concept of children as property has faded from the American conscious. Now, certain states are beginning to change the wording of family law statutes to reflect this modern shift.

By eliminating the word "custody" in favor of phrases such as "parenting time" and "decision making," litigants can better focus on the specific actions of each parent in order to determine which future course of action is in the best interest of the child. The intent behind the new wording is to create a different mindset for all those involved in the case. The change encourages parents to narrow in on parental duties, instead of viewing children as property. Additionally, family courts will have greater latitude and more options when creating a comprehensive parenting plan. The judge will not be forced to place every case in a predesigned box such as those labeled "joint custody" or "sole custody."

Under the California Family Code, a judge may award physical or legal custody. Although the word "custody" is used to describe both, the two terms have drastically different consequences. A parent awarded legal custody has the right and responsibility to make decisions regarding the child's health, safety and wellbeing. A parent awarded physical custody will have the right to spend time with the child. The proposals for change in other states attempt to clearly establish a separation between parenting time and decision-making. The spirit of the existing law will be preserved in this area; however, the new terminology is intended to change how these parental responsibilities are viewed. Proponents argue that the use of the word "custody" to describe both parenting time and decision-making is confusing to the layperson and average litigant. By actually describing "legal custody" as decision-making and "physical custody" as parenting time, the two concepts will be better understood throughout the litigation process. Additionally, the word "visitation" will also be eliminated from family law jargon. If one parent is awarded physical custody of the child, usually the noncustodial parent is awarded visitation rights. This term will be replaced with "parenting time" as well in order to reduce confusion.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.