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 in order to make sound divorce-related decisions in your particular case. At the top of the list of important things to understand in divorce is child custody.
In California, there are two types of custody: "legal" and "physical." Parents are encouraged to share both types of custody whenever possible. Joint custody means sharing either legal custody, or physical custody, or both. (Cal. Fam. Code § 3002.) If you agree to share custody, California law requires the judge to presume that joint custody is in the child's best interest. (Cal. Fam. Code § 3080.)
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." (Cal. Fam. Code § 3011.)
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:
Under California law, "joint legal custody" means that both parents share the right and responsibility to make decisions relating to the health, education, and welfare of a child. (Cal. Fam. Code § 3003.) 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. (Cal. Fam. Code § 3085.)
Parents typically share joint legal custody, unless one of the following is true:
"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. (Cal. Fam. Code § 3006.) The fact that a parent has sole legal custody does not mean that the 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 "noncustodial" or "nonresidential" parent and typically has visitation rights.
When deciding how to divide custody 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 supervised visits between the child and the non-custodial parent.
"Joint physical custody" means that both parents have significant periods of physical custody. (Cal. Fam. Code § 3004.) If a child's time is divided equally between the parents, or close to equally, the parents share joint 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. (Cal. Fam. Code § 3007.)
Under California law, the court begins the custody evaluation by presuming that both parents are equally entitled to custody of the child—meaning, the judge doesn't begin the evaluation with a bias towards one parent or the other. (Cal. Fam. Code § 3010 (a).)
In deciding what's in the child's best interest, the court will consider:
Additionally, as of January 1, 2012, California custody law permits the court to consider a child's opinion on custody (initial determination or modification). If the child is at least 14 years old and is mature enough to express a preference, the court will give great weight to the preference.
However, if the court finds that the preferred custodial arrangement is not in the child's best interest, the judge will award custody according to the other factors. The court can also consider a younger child's preference for custody but will not give as much weight to that opinion as an older child. (Cal. Fam. Code § 3042.)
When the court awards one parent sole physical custody, it will typically include a visitation schedule to ensure the non-custodial parent and child have sufficient time together. A common calendar may include alternating weekend overnight visits, splitting holidays and school vacations, and extended visitation during the summer.
Visitation schedules also often include pick-up and drop-off locations and times and an allocation of parental duties for transportation (which parent will drop the child off vs. pick the child up). Parents can create a schedule that works for both parents and the child, and if it's in the child's best interest, the court will approve it.
If there is a history of absence or abuse by the non-custodial parent, the judge may award only supervised parenting time. The court will assign the family a visitation supervisor and may also require the parent to visit with the child at a court-approved location, rather than the parent's residence. The court may award supervised visitation with or without other restrictions, depending on the case. For example, if a judge grants supervised visitation to a parent with a history of drug abuse, the court may also require the parent to attend outpatient treatment or meetings before considering whether to permit unsupervised visitation.
In some extreme cases, courts may find that it's in the child's best interest not to visit the abusive parent at all.
Over time, custody and visitation orders may require modification. For example, as a parent's and child's life expand and grow with new jobs, partners, friends, or schools, the current custody or visitation order may no longer serve the child's best interest. Under California law, either parent can request a modification of the terms of custody or visitation order. (Cal. Fam. Code § 3087.)
As with any custody-related matter, if parents agree to change the custody or visitation order, they can jointly submit their new agreement to the court for approval. If one parent wishes to change the orders, and the other doesn't agree, the requesting parent must file the proper forms with the court to request a review.
California law requires a requesting parent to prove that, since the last order, there has been a significant change of circumstances that requires a new custody or visitation order to meet the child's best interest. The court prefers stability for children, so the judge will only approve a modification if the reason is significant enough to impact the child's life.
The California Court website has extensive resources and information for parents who wish to learn more about changing custody or visitation orders. The website also includes necessary forms, as well as links to other helpful information on the website.
If you're a parent going through a divorce or separation and you have custody-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.