Over the years, I have come across a lot of misconceptions about California child custody laws. Folks are confused about the meaning of physical custody versus legal custody. We hear co-parents throwing terms like “sole custody”, “joint custody”, or “primary physical custody” around without having any real grasp of what those terms mean.
Even some seasoned lawyers, who should know better, get it wrong. Because the confusion is so widespread, I almost always give my clients a bit of a primer about the differences. Let’s get to it!
Legal custody describes the ability to make important decisions for their child. The California Family Code describes sole legal custody as one parent having the right and responsibility to make decisions relating to health, education, and welfare of the child. (Fam. Code. §3006.)
Joint legal custody simply means that both parents share the right and responsibility to make the decisions relating to the health, education, and welfare of the child. (Fam. Code §3003.) It’s the default in California child custody orders.
It is a rare case where one party is awarded sole legal custody. Typically, courts reserve sole legal custody for cases with serious problems like drug abuse or child abuse. It can also happen when the non-custodial parent has simply been absent from the child’s life. But, in almost all other cases, parents hold legal custody jointly.
The courts are strident in enforcing joint legal custody. It is a big “no, no” in most cases for one parent to make major decisions unilaterally. For instance, if a parent wishes to take the child to a doctor for non-emergency medical care, there is a duty to inform the other parent of the appointment in advance. This provides the other parent an opportunity to attend.
Both joint legal custodians have the right to be present and participate in decision making. It is also taboo for one parent to unilaterally enroll a child at a school or withdraw a child from a school without the approval of the other parent. The court sees this as evidence of a parent being uncooperative. The offending party’s parenting rights might, therefore, be in jeopardy.
Physical custody refers to the time a child is in the physical care and supervision of a given parent. Sole physical custody means a child resides with and is under the supervision of one parent, subject to the court’s powers to order visitation to the non-custodial parent. (Fam. Code §3007.)
Joint physical custody is when each of the parents has significant periods of physical custody. The idea is for parents to share their time with the child or children. As a result, the child has frequent and continuing contact with both parents. (Fam. Code §3004.)
Occasionally, one might hear the term “primary physical custody“. We often find this term in agreements to describe joint custody arrangements, where one parent in a joint custodial relationship has more time with the child than the other parent. However, it has no legal meaning under the code. Often people just use this term to describe where the children live primarily.
[The key definitions relating to California child custody issues can be read at California Family Code sections 3000 to 3007.]
Best Interests of the Children
The primary standard for determining child custody issues in California family law is the best interests of the child. To determine what “best interests of the child” means, California courts weigh two important policy considerations:
- the health, safety, and welfare of children as the court’s primary concern, and
- the assumption of frequent and continuing contact with both parents benefiting the children.
Weighing these two concepts with the circumstances in the family, the court also looks at things like the child’s preference or the co-parenting skills of each of the parents. Crucially, the courts put a premium on which parent is more likely to foster an affectionate relationship with the other parent. If a child is at least 14 years old or showing the maturity to make choices, the court will consider his/her wishes.
Your family is not ending!
It is easy to get caught up in the semantics and nomenclature when trying to come up with a good co-parenting plan. Remember, in a divorce, your family is not ending. The people are all the same—mom, dad and the kids.
Your task with your divorce is to restructure the relationship between the parents from married people to unmarried people, who, although are no longer in love with each other, still love their children. There is a way to do this so that your kids will be emotionally “ok” and there are many ways to do it where the kids get hurt.
Remember, it is better in most cases, for a child to have two loving parents in her life than just one. If parents can focus on the shared love they have for their children rather than on turf battles or who “wins” between the parents, the kids have a much easier time of it.
[The research is clear about the effects of parental conflict on children after divorce. For further reading, I recommend The Good Divorce by my friend and colleague Constance Ahrons, Ph.D. and her follow up book We’re Still Family. For more information about Dr. Ahrons, click here.