California Child Custody Fundamentals

There are two kinds of custody and two ways to allocate them between parents. The first kind of custody is legal. The second is physical. The first way to allocate custody is to award it to one parent. This is called sole custody. The second way is to award it to both parents. This is called joint custody.

Physical Child Custody & Legal Child Custody

There are two kinds of child custody and two ways to allocate them between parents.  The first kind of child custody is legal.  The second is physical.  The first way to allocate child custody is to award it to one parent.  This is called sole custody.  The second way is to award it to both parents.  This is called joint custody.  Joint child custody is defined as joint physical custody and joint legal custody.

Sole legal custody means that one parent, and only one, has the right and responsibility to make the decisions relating to the health, education, and welfare of a child.  Sole legal custody is unusual. First, it is contrary to the recognized right and responsibility of each parent to parent his or her child.  The State believes your child needs you, and the State wants you involved with raising your child.  Second, most parents - happily enough - are not threats to the safety, health, and well being of their children.  For one parent to have sole legal custody, the other parent must be physically and emotionally abusive, addicted, mentally ill, thoroughly irresponsible, or in jail, to name a few examples.

Sole physical custody means that a child resides with and is under the supervision of one parent.
If one parent has sole physical custody, the other parent has visitation.  Ordinarily the factors that result in an award of sole legal custody to one parent result in an award of sole physical custody as well.

Joint legal custody means that both parents share the right and responsibility to make the decisions relating to the health, education, and welfare of the child.

Joint physical custody means that each of the parents has significant periods of physical custody, and that they share physical custody in a way that assures the child frequent and continuing contact with both parents.

Joint legal custody and sole physical custody are not necessarily inconsistent.  For example, divorced parents often live far away from each other, making frequent and continuing physical contact impossible for both.  In such cases the child might live with one parent eleven months of the year.  That parent would have sole physical custody, and the other parent would have visitation.  However, they will probably have joint legal custody if the factors normally resulting in sole legal custody are not present

Joint custody is normally awarded.  In the order of preference set forth in the Family Code, it is in first place.  That still leaves open the question of how much time the child spends with each parent, referred to as the time share. The time share percentage is used to calculate child support, along with the parties’ incomes.  Although some parents easily reach agreement on a time share schedule without much formality, time share is usually a contentious issue.  The usual joint custody order is therefore quite detailed.

The detailed time share recommendations of Family Court Services mediators in contested matters are also useful guides for negotiating and preparing timeshare schedules in uncontested matters.  The time share schedule will be part of the court’s custody order in either case.  We can help you negotiate a time share schedule if you and your child’s other parent are agreeable.  We can go to court with you and argue for the adoption of Family Court Services recommendations that are favorable to you and rejection of those which are not.

San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.