If you are a parent who is getting a
divorce in California, and this is your first time dealing with
child custody issues, you probably have some questions about the terminology used in
the family courts. Two such terms that you are guaranteed to come across
are “legal custody” and “physical custody,” which
we’re going to explain in detail in this article.
For starters, the term “custody” refers to a parent’s
rights and responsibilities to care for his or her children. Like most
states, California has two types of custody, which are legal custody and
Legal custody refers to which parent makes important decisions about the child’s
well-being, such as the child’s religious upbringing, the child’s
education, the child’s medical care, etc.
Physical custody simply refers to who a child lives with.
Legal Custody in California
In California, both parents can have legal custody – this is called
“joint legal custody.” When the parents have joint legal custody,
it means they are both equally responsible for making decisions about
the child’s welfare. For example, if a parent wants to switch schools,
they must discuss it with the other parent and like a married couple,
they have to agree before the child switches schools.
On the other hand, let’s say a parent wants to have their child raised
as a Catholic, but the other parent wants their child to go to their Christian
church. In the case of religion, both parents would have to reach an agreement
since they have joint legal custody. A solution may be to let the child
attend both churches, or if the child is older, it may be wise to let
the child decide which church to attend. In any case, the parents with
joint legal custody would need to reach an agreement on this matter.
Legal custody isn’t always joint; it can be “sole” as
well. If the legal custody is sole, it means that only one of the parents
has the authority to make important decisions about the child’s
welfare. A parent with sole legal custody can make all decisions about
the child’s education, healthcare, travel, residence, etc.
When one or both parents have legal custody, it means such parents can
make choices or decisions about their child, such as:
- Where the child attends school
- Religious upbringing
- Mental health treatment or counseling
- The child’s medical and dental care
- Summer camp
- The child’s residence
When parents have joint legal custody, they both have the right to make
decisions about the above aspects of their child’s life, however,
they do not have to agree on every single decision. When parents have
joint legal custody, either parent has the right to make a decision alone.
Since it’s ideal to stay out of court, it’s still best for
parents to have open communication with each other, and to cooperate with
each other when it comes time to make important decisions about their children.
Physical Custody in California
As we mentioned earlier, physical custody has to do with where the child
lives, or which parent the child lives with. In California, physical custody
can be joint or sole (primary). When the parents have joint physical custody,
it means the children spend time living with both parents at different times.
When physical custody is sole or primary, it means the children live with
one parent most of the time, and typically, they visit with their other
parent on scheduled days and times, which are incorporated into the Parenting Plan.
“Does joint physical custody mean that the children spend their time
equally with both parents?” Not usually. In the vast majority of
cases, the children will end up spending at least a little more time with
one parent than the other because it’s difficult or impractical
to spend exactly the same amount of time with each parent. When one of
the parents has the children more than 50% of the time, he or she may
be referred to as the “primary custodial parent.”
“If a parent gets joint legal custody, does that mean they will get
joint physical custody too?” Not necessarily; sometimes a judge
will grant joint legal custody to both of the parents, but they will award
primary custody to only one parent (not joint physical custody). In fact,
this is fairly common.
In these situations, both parents are responsible for making important
“decisions” for their children, but the children live with
one of the parents the majority of the time. What about the other parent?
He or she will usually have
visitation and he or she is most likely the one to pay
Do Moms Always Win Custody?
Historically, mothers won custody of their children in the majority of
child custody cases, but since so many women are in the workforce, this
trend has changed. Nowadays, the language used by the family courts is
gender neutral and
fathers have the same rights to custody of their children as mothers. What matters is what’s
in the best interests of the children, not the sex of the parent.
Do I Have to Pay Child Support if I Have 50/50 Custody?
The California courts do not automatically assume that the mother should
have primary custody of the children. Even if the children are infants
or toddlers, the father will still receive the same consideration if there
is a custody dispute. What’s more, the family courts cannot deny
a father his right to custody or visitation because he was never married
to the mother, or because he has a physical disability, religious belief,
or sexual orientation. What the court is concerned with is the “best
interests of the children.”