Through legislation, the State of California has divided Child Custody into Physical Custody and Legal Custody.

What is Legal Custody?

LEGAL CUSTODY refers to the right of parents to make important decisions regarding their child(ren), i.e., key decisions affecting the child’s welfare such as the child’s education, medical care, and religious upbringing.

Normally, California Courts award legal custody to both parents, which is referred to in family court as “Joint Legal Custody”. However, if it is shown that one parent is unfit, is absent, or is incapable/disinterested in making decisions about the child’s upbringing, the court may order what is referred to in family court as “Sole Legal Custody” to one parent; (see below).

Sole Legal Custody – California Family Code §3006

If a parent is absent or disinterested in a Paternity case (unmarried parents) and the matter proceeds by way of default (unopposed), then the court normally orders Sole Legal Custody to the Petitioner, unless the request specifically asks for Joint Legal Custody.

Joint Legal Custody – California Family Code §3003

With Joint Legal Custody, the decision-making is shared by both parents. However, if there is a dispute regarding private school attendance, medical treatments or religious upbringing, parents file with the court for a Judicial Officer to resolve their dispute. Under Family Code §3038, the court is obliged to specify circumstances under which the consent of both parents is required for Joint Legal Custody.

What is Physical Custody?

PHYSICAL CUSTODY refers to parents’ custodial time arrangement. This involves two parents, where they either have joint custody with equal custodial timeshare, or one parent has primary custodial time, with the right of visitation with the other parent. Joint Physical custody is defined in Family Code §3004.

If the court orders Sole Physical Custody to one parent as defined in Family Code §3007, then the “non-custodial” parent may seek to establish visitation rights.

The issue of Physical Custody is often litigated for three reasons:

  • Parents disagree as to breakdown of timeshare with their child(ren);
  • One parent begins a relationship with a new mate, creating friction, and a parent requests modification, and
  • The California Legislature has tied child support to the parents’ visitation timeshare in determining the dollar figure paid. The dispute could be driven by a parent’s desire to pay lower child support by increasing his or her custody timeshare.

Best Interest of the Child Terminology:

The court’s main concern in deciding child custody is the “best interest of the child”. The term “best interest of the child” is defined in Family Code §3040-3049 and is a legal term used by the Family Court.

The court may, on its own motion or upon a parents’ request, appoint a Child Custody Evaluator (Pursuant to Family Code §3081-3082 or Evidence Code §730) or Minor’s Counsel (Pursuant to Family Code §3150-3153) to review the case, speak with the child and, if appropriate, to interview parents, school teachers, counselors, family and friends.

The evaluator reports to the court to provide the Judicial Officer with an independent accounting to resolve the conflicting testimony that has been presented to the court. The court will likely consider the report, including all evidence, to render a decision that is in “the best interest of the child”. At times, taking the matter to court may not be a wise decision and mediation may be a very useful tool.

Involving child(ren) in the custody battle could expose them to the parent’s conflicts, which might have adverse emotional, physical and psychological effects upon the minor(s). It is important to raise all issues with your attorney and discuss the best course of action to obtain a positive result for everyone involved.

As a parent, you may not be aware of the state law and legal cases that deal with custody issues. It is important to inquire as to the applicable case law when you decide to file for custody at abinitio (at the beginning) or for modifications. Unreasonable or misguided expectations could result in expensive litigation with disappointing results. As such, I hope to guide you to reach the best solution with little or no exposure to your child, if possible.

Effective January 2012, a new law came into effect and as a result of the Elkins Task Force and hearing. Now, children over the age of 12 (or younger at times) have a voice and can express their opinion to the court regarding custody arrangements. However, courts have discretion to exclude such testimony in a custody case, if the court sees fit. The courts are now required to state their reasons on the record for excluding the testimony or other input of children. The Record of proceedings in such cases is important in order to appeal the Judge’s decision or for filing a writ to a higher court. If the lower court erred regarding the facts and/or law, the court order may be reviewed by the higher court.

Best Interest Standard factors to consider are:

  • Health, safety, and welfare of the child such as Development, Assessment and Special Needs of minor;
  • Nature and amount of contact with both parents;
  • Habitual or continual illegal use of controlled substances or alcohol;
  • History of abuse by the person seeking custody upon the other parent or significant other, or upon any child related by blood or by a caretaking relationship;
  • Substantial proof of abuse in Domestic Violence Cases.

The court attempts to promote “frequent and continuing contact” with both parents, and encourages shared parenting rights and responsibilities unless such will be detrimental to the minor child(ren).