California Visitation Rights: Custody & Parenting Time
By Beverly Bird
Updated September 10, 2019
“Visitation” is a somewhat outdated term, but it’s still widely used. In years past, it generally meant that kids of divorced parents lived with mom and spent weekends with dad. But that was then, and this is now. These days, California courts refer to visitation as timesharing, and this might be a more accurate description. Exes are sharing time with their child, and not necessarily just on weekends.
California Visitation Rights
The days when parents would appear in court, and the judge would create and assign a visitation schedule that they were required to follow are pretty much gone. That can still happen – a judge might be forced to set timeshare terms in some situations – but this generally only happens when parents fail to agree to their own terms after multiple efforts.
Parents can reach their own agreement for a parenting plan, called a custody and visitation agreement in California, commit it to writing and sign it. And that’s it – they have a legal, binding, contractual agreement. But there’s a caveat here: a family court can’t enforce its terms if one of them decides not to follow them. A family court judge can only enforce an agreement if it’s been turned into a family court order rather than simply a contract.
That’s not a difficult process, and it probably won’t require a court appearance. Parents can submit their signed agreement to the court, and a judge will most likely sign off on it and turn it into a court order, unless it contains something blatantly wrong that would be harmful to the children.
Creating a Set Visitation Schedule
It might go against a parent's grain to schedule every moment of time that she'll spend with her child. What if she unexpectedly has an afternoon off and wants to take her daughter shopping or her son to the ballpark? There’s a lot to be said for spontaneity, but parents often find that a detailed timesharing plan can avoid confusion and disputes.
Parents can get as detailed as they like with their schedules, from detailing days of the week to annual events like birthdays and school breaks, and a California court will be OK with that. Parents and children will know exactly what to expect when a holiday is approaching. Many families alternate holidays, by year or by holiday: Thanksgiving this year is spent with mom and Christmas with dad, then next year dad gets Thanksgiving and mom gets Christmas with the kids.
Parents can also include terms for what will happen if their child is sick on a day when she’s supposed to be with one parent or the other, because forcing her to pack up and relocate to the other home would be downright cruel. Parents can provide for make-up time in these situations by stating that the parent who missed out on scheduled time can have an additional day the following week, or a similar alternate arrangement.
Some Timesharing Examples
Many parents set up a schedule where the children spend alternating weekends with each of them, so they both have some time with them when they’re not in school. A noncustodial parent who won’t be seeing the kids that weekend can have an evening visit during the week, or possibly weeknight overnight time if school and work schedules and proximity allow it.
Another option to balance out the schedule is to make those every-other-weekends longer than usual, such as Friday night through Monday night. California courts are generally pretty agreeable with whatever works out for a particular family, as long as the kids are spending regular time with both parents.
Reasonable Visitation Rights
In rare cases, a California court might agree to parents having no precise visitation schedule at all. This is typically cited in divorce decrees, and in custody and visitation agreements, as the noncustodial parent simply having reasonable visitation or timesharing rights. Of course, this works best when parents get along exceptionally well and can maintain open, constructive communication with each other for the benefit of the kids.
Additional Scheduling Considerations
It can take some time for both parents and children to get into a comfortable timesharing routine after a breakup. The California Courts website indicates that it can be as long as two years before things settle down. It also stresses that younger children, in particular, need consistent, predictable time with both parents after they part ways because the younger children's perception of time can be different from that of older children.
As for infants and toddlers, the Orange County Superior Court points out that separation anxiety can peak when a little one is 15 to 24 months old, and that these youngsters should have ongoing contact with both parents as frequently as possible.
This might seem difficult to impossible when parents are juggling work schedules between two households, but technology can make it a lot easier. even two-year-olds can hold smartphones or sit in front of a laptop or tablet and see mom or dad on the screen and talk to them. Don’t overlook the value of virtual visitation, even with older kids.
When Parents Can’t Agree
A California court will generally order and impose a timesharing schedule on parents only when they can’t agree to one themselves, and only after several attempts have been made to guide them along.
Parents will be sent to mediation if they can't reach workable terms on their own. The mediator will try to assist them, but if that fails, they’ll most likely have to meet privately with the judge before a hearing is scheduled. A judge might also order a custody evaluation by a mental health professional if unusual circumstances exist or serious allegations are made.
Taking an Ex Back to Court
A custody and visitation order can generally be reopened, changed or enforced at any time after it’s been signed by a judge, either through agreement between the parents or by one of them taking the other back to court. This typically happens when circumstances change, such as when a parent's new work schedule alters the original arrangement to a significant degree; when one parent wants to move out of state with the kids; when the children’s needs change; or perhaps when a parent is consistently interfering with the existing schedule.
What a noncustodial parent can’t do when the other parent is interfering is withhold child support in retaliation or to force the custodial parent to comply with the terms of the divorce decree or custody and visitation order.
It’s recommended that parents keep a detailed journal of all timesharing events if they find themselves in this situation: When they were turned away and why; what they did to try to reschedule time with their children; how their suggestions were received and; of course, the relevant dates and times.
California Visitation Rights for Fathers
California courts do not make a distinction between parents based on gender. Fathers have the same rights as mothers to custody and to timesharing when they’re not the custodial parent. But this doesn’t mean that they'll automatically be awarded timesharing privileges just because they're dads. They're held to the same standards as mothers based on their relationships with each of their children, their best interests and any past issues of child abuse or domestic violence.
Noncustodial fathers have a right to rely on visitation or a timesharing schedule that’s not repeatedly changed or interfered with by the custodial parent. Some lawyers advise that fathers can call the police if they arrive to pick up their kids, but they're turned away. Of course, they'll want to consider the effect this might have on the children, but it’s a legal California option.
California Visitation Rights for Grandparents
Grandparents’ rights are far less protected under California law, at least when parents object to grandparent visitation. Courts take the position that parents have a first, inalienable right to make such decisions for their children. Grandparents can be awarded court-ordered visitation, but generally only under narrow circumstances.
In most cases, the children’s parents must be divorced. The judge must additionally find that the children had a meaningful relationship with their grandparents prior to the breakup, and that severing that relationship would be harmful to the children’s best interests.
California law does provide for some loopholes, however, even when parents are married. A grandparent can file a court petition for visitation if one of the parents joins in her efforts, effectively acting as a co-petitioner, and the parents are still legally married but are separated. Other exceptions exist when the child has been adopted by a stepparent or doesn’t currently live with either parent.
When a Grandparent Petitions for Visitation
Grandparents should file a petition for visitation under the same court case that provides for the parents' existing custody and visitation order. For example, the petition would be filed under that case's number and be a part of the divorce case if there’s already a divorce decree. But if there is not yet an existing case, a grandparent can start one.
An existing court order or divorce decree can be modified to include terms for when the kids can see their grandparents, but parents can ask the court to reverse the order in the case of extenuating circumstances or for any other reasons.
Grandparents can also ask for guardianship of their grandchildren in extreme cases, such as when both parents are absent or missing, or they're unavailable because they’re imprisoned or struggling with substance abuse. Guardianship effectively gives the grandparents physical custody until the situation is resolved in the kids' best interest.
California Sibling Visitation Rights
Assuming that all siblings are minors, it’s highly unlikely that a California Court would separate them so that sibling visitation would become an issue. The state has a precedent for reversing custody and visitation orders that attempt to separate siblings, unless some extraordinary circumstance exists.
But in the rare cases when it does happen, such as when one of the siblings is an adult, California courts have been less than compassionate about overriding court orders and letting the siblings have contact. A California appeals court denied an adult sibling’s request for “necessary access” to his younger brother in 2009, although the child was in protective custody, not living with a parent, and there were some extreme circumstances.
Supervised Visitation in Some Situations
Of course, not all families are the epitome of healthy happiness. California law also contains provisions for dysfunctional family circumstances.
A parent might be awarded only supervised visitation in some cases, typically if he has become estranged from the child over a period of time and needs a chance to become reacquainted. Supervised visitation can also be ordered when a parent is struggling with dependency issues and can’t be trusted to remain sober during visiting time with the child; when there’s a history of family violence; or when the noncustodial parent has a criminal record.
Supervised visitation involves having a third party present whenever the parent and child spend time together. The third party might be a social worker, another adult or even the custodial parent.
No Visitation at All
In rare cases, a California court could take the position that no visitation with the child is suitable. This might happen if a judge determines that any contact between the parent and the child would be unsafe for the child, either mentally or physically, even if the visits are supervised. For example, timesharing might be curtailed entirely if the noncustodial parent has an extensive criminal record, not just a few minor brushes with the law.
- California Courts: Basics of Custody & Visitation Orders
- California Courts: Parenting Plans
- California Courts: Needs of Children of Different Ages
- California Courts: Custody & Parenting Time FAQs
- Bohm, Wildish & Matsen, LLP: What Percentage Timeshare Do You Have With Your Kids?
- Superior Court of California, County of Orange: Parenting Plan Guidelines
- The Margarian Law Firm: What Are My Visitation Rights as a Father?
- FindLaw: Visitation Rights in California
- California Courts: Visitation Rights of Grandparents
- Law Offices of Stimmel, Stimmel & Smith: Child Custody and Visitation Under California Law
- UCDavis Journal of Juvenile Law & Policy: Oh, Brother!
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.