Unfortunately, most of our lives have been touched by divorce. You may be a child of divorce, or you may have friends or relatives that have gone through a divorce. Or, you may know a little something about divorce as it’s often a hot news topic.
However, when you’re in the middle of your own divorce, it’s important not to rely on what you've heard from friends, family, or in the news. You’ll need to gain a solid understanding of at least some legal terms and their implications in order to make sound divorce-related decisions in your particular case.
In California, there are two types of custody: "legal" and "physical." Parents are encouraged to share both types of custody wherever possible. If divorcing parents can't agree on custody issues, they'll end up in court, where a judge will make custody decisions based on the "child's best interests."
For a complete description of the "best interests of the child" standard, see Child Custody in California: Best Interests of the Child.
"Legal custody" is the right to make major decisions about a child's welfare, health, and education. Examples of these types of decisions include:
- where a child will go to school
- whether a child will engage in religious activities, and
- whether a child should receive medical care (except in emergency situations).
Joint Legal Custody
Under California law, "joint legal custody" means that both parents share in the right and responsibility to make decisions relating to the health, education, and welfare of a child. Joint legal custody is very common in California. The fact that parents share joint legal custody, however, does not necessarily mean they will share joint physical custody.
Parents 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 interests for one parent to have sole legal custody.
Sole Legal Custody
"Sole legal custody" means that only one parent has the right to make all major decisions relating to the health, education, and welfare of a child, and may make such decisions without getting the other parent's input. The fact that a parent has sole legal custody does not mean that parent will also have sole physical custody.
"Physical custody" refers to where a child will live after a divorce or separation. Physical custody is quite different from legal custody. 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. The other parent is considered the "non-custodial" or "non-residential" parent and typically has visitation rights.
When deciding how custody should be divided and whether parents will have visitation rights, courts will first need to determine the child's best interests. For example, if a parent has a history of domestic violence or abuse, courts may order that any and all visits with the child be supervised by an approved third party. In some extreme cases, courts may find that it's in the child's best interest not to visit the abusive parent at all.
Joint Physical Custody
"Joint physical custody" means that both parents have significant periods of physical custody. If a child's time is divided equally between the parents, or close to equally, the parents are sharing joint physical custody.
Sole Physical Custody
"Sole physical custody" means that a child resides with one parent, subject to the court's authority to order visitation time with the other parent.
For more information on visitation rights in California, see Child Custody and Visitation in California, by Melissa Tapply.
If you're a parent going through a divorce or separation, and you have cutstody-related questions, you should contact an experienced family law attorney in your area for help. A general knowledge of these common legal terms, combined with the help of an experienced family law attorney, will give you greater assurance that you're doing everything you can to protect your parental rights.