What You Should Include In Your Child Custody Agreement

Posted by: Gerald A. Maggio, Esq.

orange county child custody attorneys; The Maggio Law FirmFor a couple, a divorce can be a very painful process. More often than otherwise, the divorcing couple forgets that their separation can be a terrifying phase for their children. When they hear that their parents are splitting up, the first question they would ask you is, “Who am I going to live with?”

When your spouse and you decide to go your separate ways, one of the hardest things for you to come to terms with is the fact that there could long periods of time, months even, when you would not be able to spend time with your children. This is why it is important for you to create a fair and just custody agreement. You can either draft one on your own with help from your spouse or you could consult a legal professional or attorney.

What should you include in the agreement?

If you are drafting a child custody agreement yourself, you will need to know exactly where to start. Spend some time researching laws specific to your case. If you are a resident of Orange County, you should learn the custody and visitation laws of California. Here are some basic components that should be included in your child custody agreement:

  • A declaration of custody
  • A visitation schedule
  • Methods to review and modify the custody agreement if necessary
  • The division of authority and decision making abilities among the parents
  • A method to resolve disputes
  • Any additional details if needed

Types of custody

Before you create the agreement, your spouse and you should decide what type of custody each of you is going to have. There are two types of custody. They are:

  • Physical custody – This refers to the physical custody and care of the child
  • Legal custody – This refers to a parent’s ability and right to make major decisions for the child until he or she has grown into an adult

Your spouse and you should also decide how you are going to divide custody. Sole custody implies that only one parent has complete custody of the child. Joint custody means that both spouses share custody of the child. Also, make sure you include a child visitation schedule that includes holidays and vacations.

Be prepared to make changes to your custody agreement as your child grows older. Also include a strong method for dispute resolution because you certainly would not want to be bickering with your ex ten years down the line over your child. Once you have drafted the agreement and it has been approved of by your spouse, you can produce it to your attorney or the court directly during your hearing.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Child Custody in Domestic Violence Cases

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmThe definition of domestic abuse is not limited to physical harm; it consists of sexual assault, harassment, threats, stalking, and physical injury. Violence can continue and, in many cases, increase upon separation. Domestic violence allegations play a significant role in child custody hearings. The “moral presumption” in such cases does not allow the abuser to become the primary guardian of the child/children. However, the legal presumption is open to examining the case put forth by both parents.

The top priority of California’s legislature in custody cases is the health, safety, and welfare of the children. When deciding custody the court examines evidence which substantiates the incidence of abuse in the relationship, such as police records, reports from child protective services, or other court orders. If the allegations are proven to be true, then the abusive parent is not awarded either sole or joint custody by means of a “rebuttal presumption” applied by the court pursuant to Family Code section 3044.

The presumption can be overturned if the abusive parent (perpetrator) has successfully completed a batterer’s program, is on probation or parole, has not committed further acts of violence, or proves the children are best-taken care of under them. The victim of abuse can seek a temporary restraining order citing domestic abuse affecting the partner’s custody and visitation rights.

When the children have been subjected to extreme neglect or cruelty, the court has the right to terminate the physical and legal custody of the abusive parent. In such cases, the judgment is permanent and cannot be overturned. The parent loses all rights to their children.

Fabrications are quite common in domestic violence and child custody cases. In the latter, a parent may allege abuse to tip the scales in their favor and gain guardianship of the child. If the accused parent does not contest these allegations then the court will deem them true. It becomes even more difficult if the accused has a history of domestic violence. Therefore, the accused may lose joint child custody or any kind of contact with the children.

Child custody battles take a toll on the parents as well as children involved in them. Whether you are a victim of domestic violence or a concerned parent fighting for the welfare of your children, it is paramount to consider legal aid from a qualified family law attorney. Similarly, if you are at the receiving end of a false accusation of violence which can affect your custody case negatively, you need strong legal assistance to prove your innocence.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Can The Child Decide Who He or She Wants to Stay with Post-Divorce?

Posted by: Gerald A. Maggio, Esq.

child custody attorneys in Orange County; The Maggio Law FirmDivorce is sadly sometimes the only option available to couples whose marriages have faded over the years to the point of no return. Couples find it easier and much less stress to stay apart or away from each other and lead their lives separately. But what happens to the children?

Why is it important to let children have a say in who will have custody of them post-divorce

Adults may find it easier to cope with divorce as they understand the differences and disagreements that make it impossible for them to live together. But if they have young kids or children who do not seem to be able to understand or grasp the reality of why their parents are suddenly separating it can be extremely scary, stressful and saddening for the kids. Not only do they have to cope with not seeing their parents together anymore for reasons which are probably hidden from them to protect them, but they are also forced to make the very difficult decision of which parent to live with.

Now courts and legal attorneys in the United States have started listening to the children’s wishes more and not just what the parents want and what suits them and their lifestyles. Any child, in order to grow up to be a normal adult and have a normal life, needs the love and affection of not just one but both his parents and courts are now understanding the importance of this and are taking the child’s thoughts and feelings into consideration too while deciding which parent will have custody over them.

What factors determine child custody post-divorce

The main factor that divorce lawyers and courts look into before deciding which parent will have custody of the child is who is in a better financial position to look after the child’s financial needs like medical, housing and schooling and all round maintenance and care of the child.

But before deciding this, a mediator or counselor is usually appointed by the court of law, preferably one who specializes in child psychology and psychiatry, to have a personal, one-on-one session with the child and discuss their feelings, emotions, and thoughts and find out which parent they would be more comfortable living with and who they would prefer to be with.

Sometimes it’s not just about which parent is financially more capable of looking after the child, which is in most cases the father, but it is also about which parent the child is more emotionally attached to, which in most cases is the mother.

Joint custody

Now shared or joint custody is becoming more and more popular with divorced couples so this allows the child to see both his parents at regular or periodic intervals and has both his mother and father in his life. This is only when the divorce is amicable and the parents both want what’s best for their child.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

5 Common Questions of Parents in a Divorce

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce attorney; The Maggio Law FirmWhen parents go through a divorce, their primary concern is their children. While assets and finances may matter, the fact of the matter is that your children are the greatest asset of all. Here are a few questions related to children that parents can typically ask a divorce attorney in a divorce.

1.     How can we create the schedule for the child in co-parenting?

A parenting schedule is an important document to have after a divorce since first up, it helps decrease conflict between the two spouses with everything pre-planned and secondly, it keeps you away from your ex spouse. When you are making a schedule, there are few things that need to take into account, such as;

  • Your work schedule
  • The work schedule of your spouse
  • Whether either of you travels
  • The distance between the two houses where you and your spouse live

It is important to ensure that the work schedule isn’t rigid. The child needs to have some sort of freedom and most importantly, the freedom to meet any of the parents whenever he or she wants. Your divorce attorney will help you develop your parenting plan.

2.     Which kind of parenting is right for me?

There are two kinds of parenting, co-parenting and parallel parenting. You need to make the choice of which one is right for you and your spouse. The first one is best for people who are on good terms with one another, while the other one is best for spouses that aren’t comfortable dealing with one another.

3.     How can I handle not having my children with me every day?

Yes, this is a challenge, and it is a change that you would never have welcomed, but it is nothing out of the ordinary and simply a repercussion of the decision you have taken. The fact that you will not be with your child can hurt, but you should rest assured that you and the other spouse are both equally committed to the betterment of the child. You will be able to meet the child on your turn and contact them regularly, lessening the impact of the lack of presence.

4.     What if I can’t stand my spouse and they can’t stand me either?

The problem with parenting is that it can’t be conducted in a vacuum so to speak.  Most spouses don’t want to see one another after a divorce. Yet for parenting purposes, they have to. If you hate one another, you can’t eliminate the possibility of conversing, but what you can do is minimize it by crafting well drafted parenting plans and making use of parallel parenting.

5.     How do I break the news to my child?

This is something that has no right or wrong answer. Different children react differently to divorce. Yet, typically, you must be compassionate, true and sensitive with the child when breaking the news. They may react adversely, but you need to be the calming presence, allaying their fears.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

How Children Are Affected By Their Divorced Parents

Posted by: Gerald A. Maggio, Esq.

family law attorney Orange County; The Maggio Law FirmDivorce can have a profound effect on children.  How their parents handle the divorce and both parent and co-parent can have a big impact on how well (or not) such children live through the experience and the aftermath of divorce.  Here are some points for such divorcing parents to consider when it comes to how to act regarding their children and what to avoid:

Children benefit when their divorced parents:

  • Have similar rules and disciplinary actions.
  • Prevent conflict and never result to any physical/emotional/verbal abuse of any kind.
  • Allow contact with grandparents and other extended family to avoid a further sense of loss.
  • Have a healthy and respectful method of communication.
  • Speak kindly about one another in the presence of the children.
  • Allow flexibility with visitation and give adequate notice when the children want to participate in family celebrations, events and special occasions.
  • Always keep the children’s routine and activities in mind when planning vacations, etc.
  • Provide an itinerary of travel dates, destination and lines of communication available for all parties while on vacation.

Children are harmed when their divorced parents:

  • Deny access to the children for anything other than for the safety or well-being of the children.
  • Use physical/emotional/verbal abuse of any kind.
  • Don’t keep their promises to them.
  • Make the children choose between their parents.
  • Degrade the other parent in the children’s presence or to the children.
  • Ask their children about the other parent’s activities, relationships, etc.
  • Involve the children in problems they are having with the other parent.
  • Have the children act as spies, messengers or mediators.Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Some Fallacies About Child Custody Dispelled

Posted by: Gerald A. Maggio, Esq.

orange county child custody attorneys; The Maggio Law FirmWhen you go through a divorce, the most important thing that most spouses worry about is the custody of their child. Children are thought to be the most important assets in a divorce case. However, the fact that it is such a popular aspect in a divorce case has meant it has gained popularity. Much of which has resulted in a number of false fallacies developing that are harming the process and the way parents are fighting their divorce case.

Hence, to make sure you don’t fall for the fallacies that have developed in an Orange County divorce, here is low down on some of those fallacies and the truth about them.

1.     The Gender Of The Parent Is An Important Consideration

This is one of the biggest and most widespread fallacy about the Orange County family law courts. People believe that the judges in the case tend to consider the sex of the parent as an important factor in deciding who to grant custody to. This however is far from the truth. Whether it is a woman or a man, the law is equal for all and that includes cases of child custody in divorce. The only important consideration for the court is the best interest of the child. Whether it’s with the father or the mother, that is what will dictate the decision.

2.     A Teenager Can Choose Their Parent

Again, it is common knowledge among people that when you go to an Orange County divorce with a teenage child, the courts will give them the authority to choose the parents they want to live with. This in fact is nothing more than a fallacy. The family laws has no provision or precedent where the judges go ahead and give the child irrespective of their age the final decisive authority in a case. While a teenager may be able to advise the court as to his or her preferred parents, this is in fact solely in the domain of the judge to decide.

3.     Parental Alienation Cannot Be Proved

In an Orange County divorce case, there are often instances where one of the parent is guilty of alienating the child from the other parent. It is often thought that parental alienation cannot be proven. This, however, is far from the truth. While it can be said that lack of documentation makes the parental alienation hard to prove, it can still be proven with the correct argument and evidence. In case you have documented the other parent’s parental alienation, it can be easily proved and used against the other parent in matters of child custody.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Top Ways To Schedule Vacations With Kids After Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmLike holiday schedules, planning for vacations with children after separation/divorce can be a daunting task.  Not only do parties have to consider where to vacation, they have to consider what their children may want to do and also be reasonable with the other parent who will want to take their own vacation with the children on another occasion.  Here are some things to keep in mind when scheduling a vacation:

  1. Each parent should give the other parent as much advanced notice as possible of any vacation plans.  Give written notice and include your destination, dates, and phone numbers of where you and your child can be reached at all times.
  2. Allow your children to call the other parent whenever they wish.  This will help with their sense of continuity and security when they are further away from the other parent than normal.
  3. If the child is in town during a lengthy vacation time, be flexible by allowing the other parent weekend or mid-week contact with them.
  4. Keep your child’s extracurricular activities in mind when planning vacations.
  5. Keep your child’s age in mind.  Adolescents or teenagers might want to have a say in their vacation time and may want to make plans with friends or schedule their own activities.
  6. Both parents must have the child’s school and extracurricular activity schedules available to make plans accordingly.  Some parents simply continue the normal schedules during the child’s vacation, while others plan a different schedule that will work better for the child during their vacations.

In addition, there are ways to share the children’s school vacation time, as such:


  1. While the child is off-track, parents can alternate weeks of custodial responsibility with the exchange occurring the same night every week.
  2. While the child is on summer vacation, the parents reverse the custodial plan so that the child resides primarily in the home of the parent they had less time with during the school year.
  3. For the majority of the child’s summer vacation the normal routine is followed, except the parents agree on a set period of uninterrupted time with the child so that they can each take a vacation with the child.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Advice On How To Schedule The Holidays With The Kids

Posted by: Gerald A. Maggio, Esq.

Orange County child custody attorneys; The Maggio Law FirmWhen parents are separated and/or divorced, the holidays can be very stressful times for both the parties and for their children.  Here are some things to keep in mind when preparing an effective, less stressful holiday schedule:

  1. As always, remember that this is about what is best for your children.  Holidays especially will be a time of heightened emotions for everyone, so be mindful of keeping your own feelings under control and be there for your child.
  2. Remember that children will want to celebrate holidays and special days with both of their parents.  No matter what your relationship is with the other parent, your children need the help and cooperation of both parents to help make this happen for them.
  3. It is crucial for children to develop holiday traditions with both parents and extended families.  You want them to be able to look back and remember special times with each of you.
  4. Both parents must have the child’s school schedule available when planning holidays.
  5. Set a time for a phone call with the parent that is not with the child on the specific holiday.
  6. Keep travel plans in mind for holiday traditions and family gatherings.  If long blocks of time due to travel are necessary, it may be best to alternate years so that the children can fully participate with and appreciate the time with their extended family members.
  7. Be flexible when it comes to holiday activities that your children may want to participate in, such as shopping, gift wrapping, parties, baking, decorating, etc.  There may be certain traditions that they wish to keep, regardless of scheduling conflicts.
  8. Keep your children’s ages in mind.  Although infants and toddlers are unaware of their surroundings, their presence at family gatherings during holidays may be important to the adults in both extended families.  School age children are very mindful of holidays and want to have special time with both families, whereas teenagers may not be as excited about family gatherings and activities.
  9. Your children’s safety and joy during the holidays should always take precedence.
  10. You might choose to vary your method for each holiday, as one method might work well for one holiday, but not another.

In addition, here are 4 different options for sharing holidays that you and the other parent can consider in scheduling holidays:

  1. Divide:  Let the child spend time with both parents on the holiday or holiday weekend.
  2. Alternate:  The children spend certain holidays with one parent in even years, and the other parent in odd years.
  3. Substitute:  One parent always has a certain holiday in exchange for another holiday.
  4. Regular Schedule:  Regardless of the holiday, you follow your regular schedule and the children spend it with the parent they would normally be with.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

The Different Kinds of Visitation Orders

Posted by: Gerald A. Maggio, Esq.

family law lawyers in orange county; The Maggio Law FirmCustody and visitation orders are made by courts based on what the court believes is in the “best interest of the child.”  That is the primary consideration that the court has to make based on the evidence presented.  Custody has to do with both decision-making authority of the parents as well as the physical custody designation.  In some instances, judges may give parents joint legal custody, but not joint physical custody.  This means that both parents share the responsibility of making important decisions in the child’s life, but the child lives with one parent significantly more than the other parent, who has “visitation time” with the child.

  • Types of Visitation Orders

Standard Visitation is when a parent who has the child less than 50% the time has specific dates and times they are allowed to spend time with the child.  Having detailed visitation plans normally helps all parties involved by preventing conflicts and/or confusion.

Supervised Visitation is put in place when there are concerns for the child’s safety and well-being while they are with a particular parent.  It requires that when that parent is visiting with the child, that parent must be supervised by the other parent, another agreed upon adult, or a professional agency.  This type of visitation may also be put in place when the child and a parent have not spent much time together and are becoming more familiar with each other. 

No Visitation is ordered if the visiting parent would be emotionally and/or physically harmful to the child, even under another adult’s supervision.  Hence, in these cases it is in the best interest of the child to have no contact with that parent whatsoever.

  • How Custody and Visitation are Decided 

Custody and visitation decisions are always based on the best interests of the child involved.  The court makes these decisions based on factors such as, but not limited to, the age and health of the child, any history of substance abuse or family violence, the parents ability to care for the child, emotional bonds between the parents and child, and the child’s ties to their home, school and community.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

10 Suggestions On How To Develop A Parenting Plan

Posted by: Gerald A. Maggio, Esq.

child custody attorneys in Orange County; The Maggio Law FirmFor parties with children going through a separation whether they are married or not, there are many things to keep in mind when preparing a parenting plan for their children.  Here are a few things to consider:

  1. Be detail-oriented when preparing your parenting plan.  Make sure you are specific about the dates, times, locations and arrangements for which parent will be providing transportation for all of the exchanges.  Children handle things better if they are able to trust and rely on a specific and consistent plan.  A specific plan can also help to avoid arguments between the parents.
  2. The child’s relationship with each parent and their siblings.  If a parent has been out of their life for a long period of time, visits should start slowly and supervised until the child feels comfortable with that parent.
  3. The child’s age, developmental stage and any specific needs.The child’s temperament and how they deal with change.
  4. Parents’ work schedules and where they reside.
  5. Consider that the child will also want time with their friends and extended family members.  
  6. The location of your child’s school, sports, hobbies, tutors, doctor and dentist.  Who is going to be responsible for transporting the child to these events?  
  7. Make the child’s schedule and transitions as consistent and smooth as possible.  Avoid conflict at this already heightened time of anxiety.
  8. Help your child keep their school work, sports equipment, etc. organized between transitions.  
  9. Allow the child to contact the other parent whenever they feel the desire.  If there is a high level of conflict between the parents, a more detailed parenting plan can help.

Make sure that your child’s safety and well-being is your top priority.  If you have any concerns about child abuse, mental or emotional disorders, substance abuse, domestic violence, or anything else that could harm your child physically, emotionally, or mentally, seek professional help.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

No Legal Advice Intended: This website includes information about legal issues and legal developments. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems. Full disclaimer.