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Child-Focused Divorce: Keeping Your Children Front and Center

Orange County has one of the highest divorce rates in the nation. According to data, approximately 70% of first time unions in the county end in divorce. As statistics continue to emerge that reveal that our children are bearing the burden of this ever-increasing trend, it is my goal to create solutions to provide guidance and hope for couples navigating this season in their lives. At Alternative Divorce Solutions, we have formed a unique team of professionals, including Licensed Marriage and Family Therapists, counselors and coaches, to work with families who are facing divorce who look to mitigate the emotional hardships faced by all parties, especially children.

Providing valuable information for clients and industry professionals

We recently presented a cutting-edge workshop at our offices in Newport Beach, entitled “Child-Focused Divorce: Navigating the Legal System and Conquering Co-Parenting Issues in the
Face of Marital Separation.” The dinner and discussion was attended not only by families experiencing separation and divorce, but also by industry professionals who support those families who are looking for tools and information regarding this sensitive topic.

I began the workshop with a discussion of the views, perspectives and standards of parenting of both the court and our typical mediation clients. Marriage and family therapist Brianna Dubbs of Plucky Parenting, joined me in presenting at the event, and discussed the delicate bonds between parents and children, and how to maintain strong relationships.

Types of custody: Legal custody and physical custody

The first thing to consider in a Child-Focused Divorce is legal custody. California Family Code Sections 3003 and 3006 has set forth two types of legal custody: Sole Legal Custody (CA Family Code Section 3006), in which one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of the children, and Joint Legal Custody (CA Family Code Section 3003), where both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of the child(ren).

A recurring issue where there is Joint Legal Custody in many families is the question: Does Joint Legal Custody Require that parents agree on every decision on a daily? Simply put, the answer is: No. It is assumed that either parent can make a decision on behalf of his or her child as long as such decision is consistent with physical custody (CA Family Code Section 3083).

Generally, the parent who has the physical care of any child at any given time shall have the “routine” decision-making rights and responsibilities during those periods of time for that child. The key word there is routine. Day-to-day decisions (what to eat, when to go to bed, etc.) don’t need sharing. Each parent takes care of the child consistent with the child’s best interest during that parent’s visitation time.

California Family Code Sections 3004 and 3007 set forth two types of physical custody: Sole Physical Custody, where a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation, and Joint Physical Custody, where each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020 (which lay out factors for B.I.C.; i.e. abuse of other parent/child, substance abuse, health/safety/welfare).

Joint physical custody contemplates the sharing of “significant periods” of custodial time in a manner that assures the child of “frequent and continuing contact” with both parents. However, the code does not quantify what constitutes a significant period of custodial time.

What happens when parents aren’t able to agree on such issues? How are custody disputes handled? In resolving a dispute between parents over legal custody decisions, courts must utilize the “child’s best interest” standard. I invite you to
download Orange County’s Family Court Services “Parenting Plan Guidelines”, which is an invaluable reference for parents facing these decisions. Thankfully, mediation is a service provided by our team at Alternative Divorce Solutions for those times when parents are unable to come to an agreement on their own.

Mediation is a valuable tool for families to come to the table peacefully, to share their needs and concerns with an objective team of professionals who are committed to finding solutions for that family that are in the best interest of the children involved. The process of divorce is emotional. At some point, parents need to step back and say, am I pushing my point here because I’m primed for a fight, or am I doing what is truly best for my child?

Negotiating a Parenting Plan

Oftentimes, families are simply not educated about what the law allows and calls for. Our team respectfully navigates parents thru creating a Parenting Plan that addresses key issues such as:

Health: How to handle major, uninsured medical expenses (over $100) such as braces or vision;

Holiday Parenting Plans: Participation in holiday activities, such as choosing gifts, may mean that parents, regardless of their conflicts, must work cooperatively in the best interest of the children.

Vacations: The vacationing parent will need to provide the non-vacationing parent with prior notice to the trip, in writing. The vacationing parent should always provide details of travel to the non-vacationing parent for safety reasons.

The age of the children involved significantly impacts the Parenting Plan

According to the Orange County Court, considerations should be taken into account based on age. For example, for children under the age of three years, it is important to minimize separation time from both mother and father, to promote healthy attachment and emotional development. The parent with less physical time with the child must still spend significant time caring for the child.

As children grow (three to five years old), visits can be a little farther between, but predictability and structure are very important. At any age, children should never be exposed to parental conflict. Brianna Dubbs explained at our recent workshop that being sensitive to the needs of children at various stages is critical for parents to ensure that their brains develop in a healthy way and that opportunities are present for children to form strong, healthy relationships with both parents, regardless of any conflict between the parties.

During the teen years, children are beginning to establish separate identities and are focused on activities and relationships outside the home. Older adolescents may resist a rigid weekly schedule, so parents should try to be flexible while maintaining boundaries.

I created my practice to offer my clients a better way to divorce. I have seen so many children devastated by the fallout of divorce. Personally, I was impacted as a child by a very painful and difficult divorce, as were many members of my team at Alternative Divorce Solutions. It is revealing that we have each made it our mission and life’s work to mitigate the impact of divorce for families and children. We are fully dedicated to navigating this process with our clients so that each member of the family emerges whole and complete; it is possible.

Child Support considerations

In regard to Child Support, in the state of California, both parents have an equal responsibility to support their minor children “in the manner suitable to the child’s circumstances.”

In mediation, our team at Alternative Divorce Solutions uses a program called the Dissomaster, which is the same program a judge in Orange County would use to determine support levels.

Moving on after divorce: When your ex announces a plan to move away

One of the most emotional times that a family can face is when one parent announces a plan to move away, due to relocation, affordability, need to be near family, or health reasons.

A parent with sole custody has a “presumptive right” to move with the child(ren). This means there is an assumption that the parent and child can move. Before a court can consider changing a custody order, the other parent has the burden to show that the move would be detrimental to the child, creating a change in circumstances and requiring a reevaluation of the custody order. Showing detriment in such a case is difficult.

If both parents share physical custody (joint physical custody), then there must be a two-fold determination, as no presumption arises: 1) Is changing custody to the moving parent in the best interests of the child? and 2) Is the move itself in the best interests of the child? Legal factors to consider include precedent set in Marriage of Burgess, 13 Cal. 4th, 25 (1996) where the several guidelines were established, including:

The bond between parent and child: If the bond with the non-moving parent is weak or non-existent, there may not be a significant loss to the child if the other parent relocates. If the bond is strong, but the court still finds that the move is in the child’s best interests, then this will be addressed by age appropriate visitation guidelines.

Our team has assisted families in creating custody agreements and parenting plans that took these factors into consideration, along with the delicate, emotional needs of the children. This is a prime example of why we partner with mental health and wellness professionals. Being able to call upon a marriage and family therapist during such a sensitive time is invaluable for the outcome of a family making these critical decisions. We offer team-based mediation, and bring to the table the experts required for your specific situation. Ultimately, the goal is to keep your family out of court and to keep you communicating.

It was a pleasure to present on this topic this month at Alternative Divorce Solutions. I present on a wide variety of topics relating to divorce and family law at events and speaking engagements throughout the year, and I welcome to you follow me on Facebook, Twitter, or LinkedIn to stay updated on upcoming events. Families are always invited to come and speak with me privately to discuss their situation in a consultation, in person, via Skype or over the phone.

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