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What Are the Differences Between Joint & Sole Custody?

When two parents cannot come to an agreement about child custody on their own, it will be up to the courts to decide the terms of the custody arrangement. A number of things will be considered by the court when determining child custody, and the judge will always seek to rule in the best interests of the child.

The court’s main concern is to assure the safety and welfare of the child and to maintain frequent and continuing contact with both parents through visitation. Parents are encouraged to share in the responsibilities of their children following a divorce or separation, unless extenuating circumstances prevent one parent from doing so.

Sole custody orders:

  • Exclusive Custody
  • Sole Physical Custody
  • Sole Legal Custody

Joint custody orders:

  • Pure Joint Custody
  • Joint Legal Custody
  • Joint Physical Custody
  • Divided or “Split” Custody

Understanding Physical & Legal Custody in California

While one parent may believe that they should have primary custody over the child, the question may be: is that what the child wants? There are so many options to consider, and these decisions are crucial for the wellbeing of the child.

Defining child custody is necessary due to each divorce case being unique. There are two types of custody:

  • Primary physical custody involves which parent the child will be with most of the time.
  • Legal custody then is where either one parent has the primary say in major educational, religious and medical decision’s regarding the child or the decision-making power is shared.
  • In both physical and legal custody, the parents may resort to some form of joint custody, in which they share in both the physical time with a child and also in the major decisions regarding the child.

What Is Sole Custody?

Sole custody means that absolute and total custody is given to one parent and they are then responsible for the child physically and/or regarding decisions. It is important to understand that even when parents share custody of the child; it is difficult to have completely equal division. Usually one parent will be responsible for their primary care and they will visit the other parent as frequently as agreed upon.

When weighing the possible options, take into account the phase of life the children are currently in. Consider their age, their personality, what they like to do and even their friends. It may be important also to consider the child’s personal input. Although, some children may feel uncomfortable in sharing their opinion on the matter, so it is not necessary that they give a preference.

Even so, it is good for them to know that they can have a say in the matter. During this time, it is important to remind the children of how much they are loved, and to let them know how important they are even in the process of divorce. If the parents cannot agree, then a judge will decide.

Frequently Asked Questions About Child Custody

Can parents decide on child custody?

If the parents are on friendly terms and they can come up with a child custody agreement, they can usually come up with their own arrangement, but a judge will have to look it over before it is made into an official court order.

What if we can’t agree on custody?

If the parents cannot agree on a child custody arrangement, the judge will have to decide for them based on the best interests of the child doctrine. In this situation, the judge will consider a number of factors, such as the parents’ wishes, the child’s wishes, each parent’s financial ability to support their child, any history of domestic violence, etc.

Can a parent’s mental illness impact child custody?

It is possible, but it’s not absolute. If a parent has a severe mental illness that affects their ability to take care of their children, it can present a problem. On the other hand, if the parent is receiving treatment and under the care of a doctor, and the mental illness is not affecting their parenting abilities, it may not be an issue at all.

At what age can a child choose which parent to live with?

It is a common misconception that once children reach the magic age of 12, 13, or 14, that they can choose which parent to live with, but this just isn’t the case. Only a judge has the power to make custody decisions. However, judges are interested in hearing about children’s preferences, even if they are younger than 12-years-old.

Judges will definitely give more weight to the wishes of a mature child, or an older child, but at the same time judges are aware that children are easily manipulated by adults, so they must evaluate the whole situation, not just the child’s wishes, before making a decision about custody.

Is it okay to move out if I want to fight for custody?

You may feel like living under the same roof of your spouse has become unbearable, but if you want to fight for custody and you foresee a child custody battle, you should NOT move out of the family home until you: 1) seek an attorney’s advice, and 2) have secured temporary child custody orders in place before you even think of packing your bags.

Why? Because, if you’re arguing that you’re the “better” parent, moving out sends a powerful message to the court that your spouse is suitable by your standards to care for your children most of the time. Plus, once you have a status quo established, it can be difficult to change it.

Can a parent lose custody because of an affair?

Unless the parent did something extremely neglectful, like leave their seven-year-old home alone so they could go out with their paramour, this is highly unlikely. In most California divorce cases, cheating will not usually impact child custody unless it directly affected the children’s safety, physical or emotional well-being.

Can I ask for joint custody?

The first place to start is to run it by your spouse. If he or she is on board, you can create a Parenting Plan that involves a joint custody arrangement. If your spouse is fighting you on this, you can certainly ask the court for joint custody, even if you’re a father or have spent less time raising the kids.

As a general rule, the courts lean toward joint custody arrangements because they benefit children the most. This arrangement works best when parents can live close to each other so school pick-ups and drop-offs are convenient.

Note: If joint custody is ordered, it does not necessarily mean that no child support will be paid. Typically, the parent who earns more still may have to pay some child support to the lower-earning parent. They may also have to pay for health insurance and a portion of the job-related childcare expenses.

What if a parent is abusing a child?

If a parent has been convicted of domestic violence, it can definitely impact child custody. An abusive parent may be ordered to move out of the family home, pay child support, and only see their children during supervised visits. If the abuse was sexual, or if the abuse was severe, the abusive parent could lose their parental rights.

However, not all abusive parents lose their parental rights. Sometimes, they are awarded unsupervised parenting time after they follow the court’s orders; for example, they complete a one-year batterer’s intervention program, they follow the conditions in their domestic violence restraining order, they follow the terms of their probation or parole, and they complete substance abuse classes (if court-ordered).

Get in Touch with Claery & Hammond, LLP Today

We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and our team can provide you with the caring and outstanding legal counsel you need and deserve. When children are involved in a divorce or separation, custody disputes frequently arise.

If you are having problems determining a child custody arrangement with the other parent, you will need to hire a Los Angeles child custody lawyer to handle the situation. Often when two parents split up, child custody must be decided and the arrangement will have to be adhered to by both parties, otherwise legal action may become necessary.

If you are a parent who is going through a divorce and needs help getting custody of your children, or are trying to take action against the other parent because they are disregarding previous custody arrangements, a child custody attorney in Los Angeles at Claery & Hammond, LLP can help you. Founding partner Lance Claery and attorney Eli Hammond are experienced in child custody laws and family law, and frequently handle situations involving custody disputes.

Discuss your rights under California's child custody laws by contacting our Los Angeles child custody attorneys as soon as possible. You can reach us by phone at (310) 817-6904.

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