Legal and Physical Custody in California

In California, parents can share custody (joint) or one parent can be the only one with custody (sole). There are two types of custody, legal and physical. This article explains the difference and the details. 

Legal Custody

Legal custody means the right to make decisions about a chlid's welfare. In child custody cases during a divorce, the parents will typically share joint legal custody unless one of the following is true:

• the parents are completely unable to make decisions together
• one parent is deemed unfit
• one parent is incapable of making decisions regarding the upbringing and general welfare of the child, or 
• it would be in the child’s best interest for one parent to have sole legal custody.

Joint Legal Custody

According to California Family Code section 3003, “'Joint legal custody' means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” Joint legal custody is very common in California. The fact that the parents share joint legal custody does not mean the parents will necessarily share joint physical custody (see below).

Sole Legal Custody

According to California Family Code section 3006, “'Sole legal custody' means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” This parent can make all decisions without seeking in put from the other parent. The fact that a parent has sole legal custody does not mean that parent will also have sole physical custody.

Physical Custody

Physical custody generally refers to where a child will live after parents divorce or separate. Physical custody is quite different than legal custody, which has to do with the parents' rights to make decisions about their children. The parent with physical custody has the right to have the child physically present in the home. If a child lives exclusively or primarily with one parent, that parent is usually referred to as the custodial or residential parent, having sole physical custody or primary physical custody. The other parent would be considered the non-custodial or non-residential parent and would typically have visitation rights. If a child's time is divided equally between the parents, or close to equally, the parents are sharing joint physical custody. 

Joint Physical Custody

According to California Family Code section 3004, “'Joint physical custody' means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020.”

Sole Physical Custody

According to California Family Code section 3007, “'Sole physical custody' means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.”

Primary Physical Custody

In some joint physical custody arrangements, a parent who has more time with the child may be deemed to have primary physical custody, while the other parent has secondary physical custody. In other words, the term “primary physical custody” is often used in cases where parents are awarded joint physical custody and one parent has slightly more time than the other. However, in California, the term “primary physical custody” doesn't exist in the Family Code, so there is no language to define its legal meaning. This can become an issue when a court identifies one parent as having “primary physical custody” and the other “secondary physical custody,” particularly in moveaway cases, where the parent with primary physical custody seeks permission from the court to relocate with the child.

Summary

If you have a court order defining legal and physical custody, or even if there is no court order making these determinations, legal and physical custody are important legal terms with which you should become familiar. A general knowledge and awareness of these common legal terms, combined with the help of an experienced family law attorney, will give you greater assurance that you are doing what is necessary to protect your parental rights, parental responsibilities, and your relationship with your children.

About the Author
Steven Carlson, The Custody Coach™
http://www.childcustodycoach.com/