Understanding custody terms commonly used in California and what they mean can be somewhat confusing. From filing for joint legal and physical custody of your child, to creating a visitation schedule in the event a sole custody order is granted, A People’s Choice can walk you through the steps of obtaining a custody and visitation order. Read on to learn more about California custody terms and what they mean.
What is Custody?
California custody laws set up the framework for courts to make a custody or visitation order. When a court issues a custody order, it addresses how parents will share 1) where the children live and 2) who has control over important legal decisions about the children. California has several custody terms used in agreements and orders when addressing legal and physical custody. Physical custody refers to where the children live. Legal custody addresses the right of parents to make major decisions about their child’s health, education, and religious practices. Custody can be shared jointly between the parents or can be granted to one parent.
When incorporating legal and physical custody terms into a marital settlement agreement or custody order, if the parties cannot agree they may need a mediator to help come to a solution. A mediator serves as a neutral third-party. The mediator’s goal is to help parents reach an agreement about their custody and visitation issues. The most successful parenting plans are usually those plans that have been agreed to by parents outside of court intervention. However, if parents are unable to reach a custody agreement, the court will step in. The court will consider several factors when determining whether to grant a parent joint/sole legal and/or physical custody. Such factors include the following:
- The age and health of the child
- The ability of each parent to care for the child
- Any history of domestic violence within the family
- The child’s ties to school, community, and his/her home
- The child’s preference as to which parent he/she would like to live
- The psychological well-being of the child
Custody Terms in California
What is Joint Custody?
Joint custody occurs when parents share physical and/or legal custody of their child. Parties can have joint legal and physical custody or they can have joint legal custody with one parent having sole physical custody. When the parties have joint legal custody, both parents will have equal rights and responsibilities for issues about their child. Joint legal custody allows both parents to make decisions regarding their child’s education, religious practices, counseling, health care, and extracurricular activities. On the other hand, joint physical custody allows both parents to share visitation with their child. It does not necessarily mean that one parent will spend more time than the other parent with the child. Each parent has the right to have the child in his/her home for specified periods of time. Contact us for more information about filing a joint custody order.
What is Sole Custody?
The court may assign one parent to have sole legal and/or physical custody. Sole custody can be awarded to a party in a variety of combinations. As mentioned above, parties can have joint legal custody with one parent having sole physical custody. This means that both parents work together making important legal decisions but only one parent has physical custody of the child and the other parent has visitation. Custody terms used in addressing sole custody in California include sole legal custody and sole physical custody. These custodial arrangements are further explained below.
Sole Legal Custody: The court can award sole legal custody to one parent with joint physical custody to both parties. Sole legal custody means that the right to make choices about their child’s health, education, religious practices is granted solely to one parent. The parent with sole legal custody does not have to discuss major legal decisions involving the children with the other parent.
Sole Physical Custody: Sole physical custody means that the child will live with one parent (live within their home). The non-custodial parent will usually have visitation privileges with the child.
When One Parent Is The Primary Custodial Parent
Sometimes the parties can be awarded joint legal and physical custody with one parent being the primary custodial parent. The custody term “primary custodial parent” typically refers to one of the parents having the child more than 50% of the time. Custody terms such as “primary custodial parent” and “primary residence” actually have no legal meaning other than for determining tax status. Both parents still have joint custody.
Sometimes the manner in which certain custody terms are used in an agreement “soften” the divisiveness of the custodial arrangement. For example, agreeing to a joint legal and physical custody arrangement with one party being awarded as primary custodial parent may appear “less harsh” to the noncustodial parent. It allows the other parent to feel they can jointly take part in parenting of the children while designating the other parent as having “primary custody.”
Visitation and Custody
Once physical and legal custody has been resolved, another custodial term found in agreements or orders is pertaining to “visitation.” Visitation is the award of time one or both parents have with their minor child. Visitation can be specified with exactness such as “every other weekend from Friday 8pm to Sunday 6 pm.” Visitation can also be very loosely worded such as “open and unspecified per the agreement of the parties.” In joint physical custody arrangements, visitation could be equally divided (50%) with each party or could be an unequal division. For couples who are able to amicably co-parent their children after divorce, or couples with inconsistent schedules, joint legal and physical custody with open visitation between each parent offers the parents a flexible schedule with their children. An “open and unspecified visitation” arrangement would not be suggested for couples who are contentious with each other and don’t agree on parenting issues.
Custody and visitation can always be modified when there has been a change of circumstances or other reason to change an earlier court order. The party seeking to change visitation or custody must file a Request For Order explaining the reason they are requesting change to the current visitation and/or custody order. Often the court will also schedule court Mediation which will take place on or prior to the hearing date. If the parties cannot reach an agreement during mediation, the mediator will usually provide the court their recommendation. After reviewing the mediator’s recommendation and any testimony presented at the hearing, the court will issue its order on the matter.
Contact A People’s Choice
Contact A People’s Choice for more information. We can help show you how our clients have strategically incorporated certain custody terms into their settlement agreement so that both parents are happy with what the arrangement represents. In contested matters, we can help you draft all the legal documents you need to file a custody motion. We can also refer you to mediators to help resolve any pending custody disputes you may have. Contact us today to get started.