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Legal VIEW

Child's Welfare a Big Factor in Divorce

October 24, 1985|JEFFREY S. KLEIN

Child-custody and visitation rights are often the most difficult aspects of a divorce proceeding.

It is hard enough for a couple to face the trauma of a divorce, but when the fight extends to the children, everyone can lose, no matter what the judge decides. That's why it's important for couples with children who face an impending divorce to have a clear understanding of the legal rules governing child custody and visitation.

In general, judges in California are required to make custody and visitation decisions based on the "best interests of the child." As one court put it: The "welfare of the child is, of course, the paramount consideration of the court."

In one recent Los Angeles case, for example, a Superior Court judge conditioned a divorced father's right to visit his child on the timely payment of his child support and his promise to undergo psychotherapy. In other words, the court ruled, if the father did not pay child support and see a counselor regularly, he could not visit his son.

But earlier this month, the 2nd District Court of Appeal decided the trial judge was wrong, that the conditional visitation was not in the best interests of the child. Child visitation and support are two independent rights, both of which benefit the child.

"Visitation by the natural parent is as much a right of the child as it is of the parent," the court said.

Because there was nothing to indicate that visits by the father would be "detrimental" to the child, the court decided that he should be able to visit his son whether or not he made the court-ordered child-support payments or saw a counselor.

California law also encourages divorced and separated "parents to share the rights and responsibilities of child rearing," according to Patricia E. Lerman, the state bar's community-education manager and editor of a legal-information pamphlet entitled "Who Will Get Custody of Our Children?"

The pamphlet, distributed free of charge by the state bar, discusses, in straightforward, easy-to-understand language, many of the major custody issues facing divorcing parents--how judges make custody decisions, how a family-court mediator can help parents agree on a fair custody plan, whether a custody plan can be changed.

The pamphlet also explains the concept of joint custody, a frequently misunderstood concept, which is usually preferred by California courts. It does not mean that the children must live with each parent for an equal amount of time.

Lerman explained that joint custody comes in two varieties.

"Joint physical custody means that the children live with each parent on a regular basis," she said, "but the time does not have to be divided evenly. Joint legal custody means that each parent has an equal right and responsibility to make decisions about the children's health, education and welfare."

Perhaps the best piece of advice for divorcing parents with children is contained in the very first sentence of the pamphlet: "The best solution is for you and your spouse to agree on who will take care of the children." Hard as it may seem at the time, if you and your spouse can make this decision initially, the court will probably approve it. ("In most cases, a judge will approve a custody plan that both parents want.") You will save everyone involved, especially the children, a lot of heartache and headache.

One free copy of the custody pamphlet may be obtained by sending a written request and a stamped, self-addressed, business-size envelope to: State Bar Pamphlets, 555 Franklin St., San Francisco, Calif. 94102.

Multiple copies may be ordered by sending a check or money order, payable to State Bar of California, to: State Bar Pamphlets, 144 Townsend St., San Francisco, Calif. 94107. Pamphlets are sold in multiples of 100 at $17.50 for 100 copies, $130 for 1,000 and $500 for 5,000.

Attorney Jeffrey S. Klein, a member of The Times' corporate legal staff, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Legal View, You section, The Times, Times Mirror Square, Los Angeles 90053.

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