Legal Custody and Physical Custody in California

Legal Custody

Generally, there are two types of legal custody recognized by the courts: sole legal custody and joint legal custody. In child custody cases, the parents will typically share joint legal custody unless one parent is deemed unfit or if it is determined that he/she is incapable of making decisions regarding the upbringing and general welfare of the child, or if it would be in the child’s best interest for that parent to not have legal custody rights.

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. However, the fact that the parents share joint legal custody does not mean the parents will necessarily share joint physical custody.

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.” The fact that a parent has sole physical custody does not mean he/she will also have sole legal custody.

Physical Custody

Physical custody generally refers to where a child will live after parents divorce or separate. Physical custody is much different than legal custody, which has to do with the rights and responsibilities of the parents to their children. The parent with physical custody has the right to have his/her child live with him/her. If a child lives exclusively or primarily with one parent, that parent is usually referred to as the custodial parent with sole physical custody or primary physical custody. The other parent would be considered the non-custodial parent and would typically have visitation rights with the child. If a child lives equally or close to half of the time with each of his/her parents, the parents are generally considered to have joint physical custody. In some joint physical custody arrangements, a parent that has more time with the child may be denoted as having primary physical custody of his/her child, while the other parent has secondary 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

Primary physical custody is a term that is often used to denote the parent with whom a child lives for the great majority of time. 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” is not found in the Family Code, so there is no statutory language to define its legal meaning. Nevertheless, the courts continue to denote one parent as having “primary physical custody” and the other “secondary physical custody,” which has created issues in interpretation, particularly in move-away cases, where the parent with primary physical custody seeks permission from the court to relocate with his/her 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.