LEGAL
The Basics of Child Custody in California
By Feinberg & Waller
F
amily law matters can be very
emotional for all parties involved, especially
the children. Unfortunately, child custody decisions
often present with the most difficulty
and disagreement between the separating parents. When
parents going through a divorce are either unwilling or
unable to agree on issues of timeshare (sometimes called
“physical custody,” “access” or “visitation”) and legal custody
(basic decision-making authority) of the children, the court
will make the custody determinations for them. In California,
the court will decide child custody issues based on what is
determined by the judicial officer to be in the best interest
of the child.
Physical Custody vs. Legal Custody
There are two types of custody awarded by the court:
physical custody and legal custody. Physical custody is what
most parents think of in the context of “child custody,” since
the physical custodian is with whom the child will typically
spend most of their time. Even when one parent is awarded
sole physical custody, the court will almost always set a
visitation (or “access” or “timeshare;” same concept, different
labels) schedule for the other parent.
Legal custody, on the other hand, deals with who will have
the right to make decisions relating to the health, safety, and
welfare of the child, the so-called “big” decisions in the child’s
life. While a parent with physical custody has discretion to
make day-to-day decisions for the child, the legal custodian
will have the right to make more important decisions like what
school the child will attend, what religion they will be raised
under, as well as important medical decisions. In most cases,
physical custody will be awarded to the parent that the child
will spend the most time with, and both parents will share
legal custody.
It is not uncommon, however, for the court to assign one
parent as the “tie-breaker” in the event the parents cannot
agree on an important issue. For example, if parents are
struggling to get along with each other, in order to avoid
conflict in any given area of decision making the court may
award joint legal custody to both parents, but then give one
parent tie-breaking authority on issues related to education
and give the other parent tie-breaking authority in the area
of health care decisions. Or one parent (typically the one
the court finds to be the more reasonable one) might get
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tie-breaking in all major areas, which for all practical purposes
is the equivalent of that parent having sole legal custody; the
difference is subtle but nonetheless significant.
Joint Custody vs. Sole Custody
The court may award either parent sole custody of the
child, or award both parents joint custody. Most experts agree
(and the California Legislature has so determined) that both
parents should be involved in their child’s upbringing and
share parenting responsibilities even after divorce as much as is
reasonably practical. As such, the court will try to award joint
custody whenever possible.
Some courts will simply state that the so-called noncustodial parent will have “reasonable visitation,” but in this
author’s opinion it is always best to get a detailed and specific
set schedule in the custody orders so there will always be a
“fall back” position in the event the parents cannot agree.
Child custody determinations are decided on a case-by-case
basis and depend on the particular facts and circumstances of
your divorce. Given the discretion of the court in awarding
child custody and the significance of what is at stake, if
it is affordable it is important to retain the counsel of a
knowledgeable family law attorney who is experienced with
child custody hearings to assist. This is not required, just
advisable.