divorce becoming more socially acceptable and practically the norm, the
child custody landscape has changed dramatically in the past 15 years. Historically,
mothers were the ones to get custody of the children and fathers were
the ones to pay
child support, but with each passing year, that’s changing and we are seeing more
joint custody situations than ever before.
What are the reasons behind this shift? One reason is the number of women
in the workforce. These days, it’s more common for women to be working
full-time than it was in previous generations. Not only that, but we’re
seeing more stay-at-home fathers than ever before with their wives being
This change alone has changed the way the courts view child custody; fathers
are now given equal consideration when it comes to child custody and mothers
are no longer presumed to be the better choice when it comes to primary custody.
Legal vs. Physical Custody
These days, both parents are given the opportunity to play meaningful and
active roles in their children’s lives despite a divorce or split.
In the context of child custody, it’s broken down into two parts:
legal custody and physical custody.
Legal custody refers to a parent’s decision-making responsibilities.
It refers to a parent’s ability to make short and long-term decisions
for their child in regard to education, healthcare, extra-curricular activities,
the child’s residence, religious upbringing, etc. In most California
child custody cases, the court awards legal custody to both parents.
When both parents have legal custody of their child, they can co-parent
and make important decisions on the child’s behalf together as a
team. For instance, the parents can agree on whether to place their child
in a public or a private school and they can discuss which religion to
raise the child in, if any.
Physical custody on the other hand, has to do with a parent being responsible
for the daily care of their son or daughter. Usually, one parent has the
child the majority of the time and the other parent pays child support.
When one parent is awarded physical custody, they are sometimes called
the “primary custodial parent” and the other parent has some
kind of visitation rights. However, parents can seek joint custody, but
even then, one parent usually has the children more of the time because
it’s virtually impossible to split the time 50/50 down the middle.
Joint Custody and Child Support
A lot of clients have asked us if they get joint custody of their children,
if they can avoid paying child support, and this question makes perfect
sense. It may sound counterintuitive, but in California, having joint
custody will not necessarily allow a parent to escape paying child support.
If you’re awarded joint custody and you earn more than your former
spouse, you still could be ordered to pay some child support. You may
also be ordered to contribute to employment-related child care and uninsured
medical expenses for your children.
“What if I have my children less of the time, will that affect how
much child support I pay?” How much time you have your kids is a
factor in how much child support you pay. As a general rule, the more
time your children spend with you, the less child support you’ll
be ordered to pay. This is because you spend money to care for and support
your children while they are with you and the courts are aware of this.
However, the child support formula is somewhat complicated, and it doesn’t
always work out where you pay less because you have the kids more often.
There are other factors that come into play, such as your ex’s income,
and if he or she is on public assistance. As we mentioned in the joint
custody scenario, if you earn more than the other parent, you could end
up paying child support even if you have the children more often.
Determining Child Custody
Child custody can be determined in one of two ways. First, the parents
can reach an agreement on their own about how child custody will play
out. They can draw up their agreement in a Parenting Plan and the judge
can sign off on it. However, if the parents cannot agree, a family court
judge will have to step in and render a decision based on the best interests
of the children.
If both parents are good, loving parents who want the best for their children,
there is a strong possibility that the judge will seek a joint custody
arrangement, especially if the parents live relatively close to each other.
However, if one parent has committed
domestic violence, or if they have a severe mental illness, or if they have a
substance abuse problem or a serious criminal history, the judge may award custody to
the more fit parent.
“At what age can my child choose custody?” is a question that
parents ask a lot. In California, there is no set age where a child can
choose which parent to live with. Essentially, a judge will be very interested
in hearing a child’s wishes and the child’s reasons, but ultimately,
the decision is the judge’s, not the child’s. It is a common
misconception among parents across the country that older children can
choose custody; that simply is not how it works.
Whenever there is a child custody battle, the judge carefully examines
the facts of the case. The judge not only takes into consideration the
parents’ wishes and the child’s wishes, but the judge looks
at the whole picture. The judge will want to know the child’s relationship
with each parent, if there is any history of domestic violence, the age,
and health of each parent, the child’s ties to the community, the
parent’s economic circumstances, etc. It all comes down to the best
interests of the child doctrine.
Regardless of the path child custody takes, it’s important that the
parents treat each other with dignity and respect, avoid badmouthing each
other to the children, and work to create a healthy co-parenting relationship.
8 Child Custody FAQs – California