Divorcing parents need to figure out who will make decisions about their children’s care, where their children will live, and when each parent will spend time with the children. When parents can’t agree, courts will need to make the decisions for them, and a judge will issue orders regarding legal custody, physical custody, and visitation.
Legal Custody: Legal custody refers to the right to make important decisions about the child’s welfare, including education, medical care, and religious upbringing. The court may order joint legal custody, where both parents have an equal right to make these decisions, or sole legal custody, so that only one parent has the right to make all or some of these decisions.
Physical Custody: In addition to legal custody, the court will make orders for physical custody. Physical custody involves where the children live and who will be responsible for daily child care. The court can order joint physical custody among both parents or sole physical custody to one parent.
An order for joint physical custody, sometimes called “shared custody,” means that the children live with both parents almost equally and according to a set schedule.
An order for sole physical custody means that the children live mostly with one parent and that parent is responsible for the day-to-day care of the children.
When one parent has sole physical custody, the other parent-- sometimes referred to as the “non-custodial parent”-- still has the right to “visitation” (the right to spend time with the children), except in extreme cases where it would not be in the children’s best interest. For example, in some cases of extreme abuse and/or neglect, a court may deny any and all visitation time with the children.
When courts order sole physical custody to one parent, they will also make visitation orders which set out a schedule for the children to spend time with the other parent. Typically, the visitation schedule will include details, such as the pick-up and drop-off location for visits, transportation responsibilities (including who pays for travel), and a specific schedule for holidays, birthdays, and vacations.
If the court believes that unsupervised visitation is not in the child’s best interest, the court may order that visitation can only occur if it’s supervised by another person. Courts may order supervised visitation to take place at a local county or city facility, under the watch of a trained professional.
Supervised visitation may be ordered if the court is concerned about the children’s safety, such as when the parent has issues with drug or alcohol abuse, or domestic violence. The court may also order supervised visits if the parent and children have not seen each other for a long time, so that they can get to know each other with another person present until the children feel comfortable being left alone with the parent.
Yes. If they’re willing to cooperate and compromise, parents can (and often do) work out custody and visitation arrangements on their own. When parents reach an agreement outside of court, it must be put in writing and submitted to a judge for review. If the judge approves it, the custody arrangement becomes a court order, which both parents must follow.
When parents in California need custody orders, but they can’t agree on a proposed arrangement, they must try mediation before a judge will decide the issues for them. In mediation, a mediator (a neutral, third party trained to work with divorcing couples) meets with both parents to help them identify issues and find a way to reach an agreement.
If mediation is successful, and the parents agree on a custody arrangement, the judge will sign their agreement and it will become a court order. If the parents still can’t agree after mediation, they have to go to a hearing where a judge will decide.
Judges make custody decisions based on what is in the best interest of the children. No preference is given for a mother or a father; both parents are considered equally. In deciding what’s in the children’s best interest, the court will consider the following factors:
Generally speaking, custody and visitation orders are never really final. As children grow, their needs change, and their parents’ lives may change dramatically as well. A custody and visitation arrangement that worked well at the time of the divorce, for example, when the kids were two and four, may not work any longer when the children are 14 and 16. In order to respond to evolving family dynamics, courts have continuing authority to review and modify (change) child custody and visitation orders.
Modification of custody
A parent who wishes to change a legal or physical custody order must file a motion (legal request) and show that there has been a change of circumstances that affects the welfare of the child. If a sufficient change of circumstances is shown, the court will decide whether it is in the child’s best interest to modify the order(s).
When parents have joint or sole custody, a parent who wishes to modify the co-parenting or visitation schedule, but not the custody order, does not need to show a change of circumstances. The parent will only need to show that it is in the child’s best interest to change the schedule.
When a separation, divorce, or parentage action is filed in court, automatic orders are issued that prohibit either parent from moving with the children without a court order. When custody orders are already in place, and a parent wishes to move out of state with the children, new orders must be made. If parents can’t agree, they’ll have to head to court, where a judge will hold a hearing to decide whether it is in the best interest of the children to move with the parent or stay with the non-moving parent.
For a more detailed discussion on move-away cases, see Move-Away Cases in California, by Melissa Tapply.
Move-away cases are a very specialized area of family law. If you’re a parent on either side of this issue, you should contact a family law attorney experienced in custody matters.
You can find a wealth of information at DivorceNet's resource page on Child Custody Laws in California.