Legal Custody in California – The What and How

The first section of this article will assist the reader in understanding the legal terminology that is utilized in California Family Courts. The second section will discuss: (1) the types of custody orders that exist, (2) the types of visitation orders that exist, (3) the laws relating to custody and visitation orders, and (4) how to obtain a custody or visitation order. The third, and final section of this article will focus on “joint custody.”

Section 1 – Legal Terminology in California Family Court

In divorce and separation cases, the terms “visitation” and “custody” come in very frequently. “custody”, as it relates to children, is simply the legal shorthand for the relative rights and responsibilities between the parents for caring for their legal children (For a brief discussion on Parentage in California, read this [Cross-Link to Parentage Article] article). The term “visitation” is shorthand for how the parents will a lot their time with their children. In nearly every contested divorce, where children are involved, the parties or the Court will need to decide who gets “custody”, what type of “custody” the parties have, and how “visitation” will work. 

In California “custody” determinations, the Judge decides whether one parent will have custody over a child (“sole custody”), or whether both parents will share “custody” (legal and/or physical) of their children (“joint custody”); as a practical matter, the Judge will adopt a plan that both parties agreed to (the “parenting plan”). When parties can’t agree on a “parenting plan”, the Court must make the decision, though this rarely happens prior to having the parties meet with a mediator who works with Family Court Services.

Section 2A – Types of Custody Orders That Exist

There are two (2) types of child custody:

1. “Legal Custody” – The parent (or in “joint custody”, both parents) with “legal custody” are granted the legal authority to make decisions about the child’s health, safety, education, and welfare.
2. “Physical Custody” – The parent (or in “joint custody” both parents) with “physical custody” is where the child lives.

  Legal Custody

As mentioned above, the parent(s) with legal custody have the legal authority to make determinations regarding their child’s:

1. Child care;
2. Education;
3. Religious Activities;
4. Religious Institutions;
5. Psychiatric Care;
6. Psychological Care;
7. Dental Care;
8. Extracurricular Activities;
9. Travel; and
10. Residence

Where the parents have “joint legal custody” each one is capable of making their own decision about the items listed above, regardless of whether they agree. However, this is a sure-fire method to end up back in Court contesting whether “joint legal custody” is appropriate. As a practical matter, it is best to communicate with your ex-spouse and find a middle ground that satisfies both of your goals. At the end of the day, the Court is only interested in the child’s best interest and may substitute their judgment for yours in extreme situations (that is, they may side with one parent or the other and make a “custody” order removing your legal custody over your child).

Physical Custody

As you may have already surmised, in a situation involving “sole physical custody”, the child’s permanent residence is with the parent who has physical custody. Generally speaking, if one parent has “sole physical custody”, they will have at least “joint legal custody” (i.e., it is highly unlikely that one parent will have physical custody while the other has legal custody).

In the “joint physical custody” variant of physical custody, it is not necessary that the child spend 50% of their time with both parents, it is common for one parent to have the child with them more than the other – this parent is referred to as the “primary custodial parent.”

In situations where the Court has granted the parties “joint legal custody”, but grants one parent “sole physical custody”, the parent who does not have “physical custody” of their child is often granted a “visitation order.”

Section 2B – Types of Visitation Orders That Exist

“Visitation”, which is synonymous with a “time-share plan”, is a Court order dictating how the parents will apportion their time with the child. As a general rule, the parent who has physical custody of their child less than 50% of the time, will be granted “visitation” with their child. There are a number of types of “Visitation” orders that exist, and the Court will make those orders based on: (1) the parent’s situations (money, whether they get along, whether the parent has a history of substance abuse, etc.), (2) the best interest of the child, and (3) “other factors.” Some of the types of “visitation orders” include:

1. Visitation According to A Schedule – The most common form of a “visitation order” involves the Court, along with the parties, creating a schedule setting forth what days and times the parent with less custody will be able to see their child. This schedule generally sets forth which holidays the child will spend with each parent (the holidays generally switch every year so both parents can spend time with their child on all major holidays), where the child will spend their breaks from school, and where the child will spend special occasions (birthdays, etc.). The purpose of creating a schedule is to avoid confusion and provide the parents with a tangible document to refer to in the event of a dispute.
2. Reasonable Visitation – The Reasonable Visitation Order is different from the Visitation According to a Schedule detailed above in that there is no tangible document setting forth every little detail of a parent’s rights to visitation. Rather, this type of Order is open-ended and allow a flexible schedule. This type of Visitation Order is generally reserved for parents who aren’t in conflict with each other on a regular basis. Keep in mind that the Court can modify a visitation schedule as it sees fit based on the factors listed above, and below. (i.e., if a Reasonable Visitation Order causes conflict, the Court may force the parties to create a Visitation Schedule and abide by that).
3. Supervised Visitation – When the Court determines that a child’s well-being (mentally and emotionally) and/or safety are at risk, the Court will mandate that a parent’s visits be supervised by the other parent, another adult, or a professional agency. This type of visitation is also ordered when the child and parent have become estranged, and the child needs supervision to feel safe as they get to know their estranged parent again.
4. No Visitation – When the Court determines that it would not be in a child’s best interest to have contact with the other parent, they will issue an order prohibiting the parent who puts the child at-risk is not to have any contact with their children. As a practical matter, the Courts are not eager to make this Order, and will usually make it a temporary Order conditioned on the other parent completing some task (anger management, rehabilitation, etc.).

Section 2C – The Laws Relating to Custody, and Visitation, Orders

When making determinations about the “custody” and “visitation” as it relates to a child, the Court’s sole basis for making a determination is what is in the child’s best interest. In making that determination, the Court will look at a number of factors, which include:

1. How old the child is;
2. The child’s general state of health;
3. The emotional bond that has been formed between the child and the respective parents;
4. Each parents physical, mental, financial, and emotional ability to care for the child;
5. Any history of substance abuse of domestic violence; and
6. The child’s attachment to a school in one parent’s school district, the attachment to the home they have spent most of their time in, and the child’s attachment to the community of one parent or the other.

It is a common misconception that the Court will automatically grant the father or mother custody based on the gender of the child. The Court also does not automatically grant, or deny, “custody” or “visitation” based on the marital status of the parents, one parent’s religious beliefs, lifestyle, or sexual orientation; the Court is only concerned with the best interest of the child.

Section 2D – How to Obtain A Custody or Visitation Order

In the typical divorce proceedings, the parents mutually agree on “custody” and “visitation” discussed above; these amicable agreements do not require a Court Order. An issue arises when one parent unilaterally stops abiding by the agreement, since the Court cannot enforce your agreement without entering a Court Order. In the situation where there is no Court Order, and one parent has stopped honoring that agreement, the parent who is abiding by the agreement can submit the initial agreement to the Court for an Order to the same effect. This agreement is generally adopted by the Court as a matter of course and become binding and enforceable.

In other situations, the parents simply cannot see eye-to-eye on “custody” and “visitation”, and thus can’t reach an agreement in the first place. In this scenario, the Court generally orders the parents to attend mediation, which is overseen by a professional mediator who works with Family Court Services. In the event that the parties still can’t agree on “custody” and “visitation” after mediation, the Judge will hear both party’s arguments, and make a determination based on his opinion about what is in the child’s best interest; this is a Court Order and is enforceable against both parents.

At Maples Family Law, we understand how emotionally charged discussion can become when discussing “custody” and “visitation.” This emotional charge is naturally enhanced by the fact that the discussion is invariably tied to the dissolution of a marriage. The attorneys at Maples Family Law have ample experience advocating on behalf of their clients for “custody” and “visitation” issues. If you or a loved one believes that there may be a dispute as to these very important issues, contact us today for a consultation.