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What is Child Custody?

Child custody refers to the rights and responsibilities of parents for their children.

There are two types of custody: legal custody and physical custody.

Legal Custody

Legal custody is the right and responsibility of parents to make decisions relating to the health, education and welfare of a child. Joint legal custody means both parents share that right and responsibility (Cal. Fam. Code § 3003). Sole legal custody refers to when only one parent has the right and responsibility (Cal. Fam. Code § 3006).

Physical Custody

Physical custody is with whom the child lives with. Joint physical custody means that both parents will have significant periods of time with the child in such a way that ensures a child has frequent and continuing contact with both parents (Cal. Fam. Code  §3004). Joint physical custody does not require that parents split their time 50/50, so long as each parent has significant periods of time with the child. Sole physical custody means the child lives with and is under the supervision of only one parent (Cal. Fam. Code §3007). Sole physical custody means that the child lives with one parent, but may still visit or spend time with the other parent.  Sometimes, this can be referred to as “primary” physical custody.

“Joint custody” as defined by California Family Code § 3002 means that the parents have joint legal custody and joint physical custody.

When Do Issues of Child Custody Arise?

Issues of child custody can arise when:

  • The parents are married and there has been a divorce, legal separation or annulment
  • The parents are unmarried and a parental relationship has been established or needs to be established

When there is an issue of child custody, both parents may be ordered to attend mediation before the court hearing where both parents must make a good-faith attempt to participate and reach an agreement regarding custody and parenting time. If the parents have already come to an agreement on their own, they will not be required to attend mediation and will simply file their agreement in court.

What Does the Court Consider in Child Custody issues?

Pursuant to California Family Code § 3020, California’s public policy focuses on the health, safety, and welfare of a child when making any orders regarding their physical or legal custody or visitation. In addition, California public policy wants to ensure that a child has frequent and continuing contact with both parents and encourage parents to share the rights and responsibilities of child rearing.

The court is given a lot of discretion in determining child custody arrangements, and must consider all of the relevant facts and laws to ensure the best interests of the child are met.

What Does the Court Consider in Determining the Best Interests of a Child?

California Family Code § 3011 states that a court shall consider, among any other factors it finds relevant, the following factors:

  • The health, safety, and welfare of the child
  • Any history of abuse by one parent or any other person seeking custody against any child, the other parent, or a spouse of the parent seeking custody
  • The nature and amount of contact with both parents
  • The habitual or continual illegal use of controlled substances, alcohol, or prescribed controlled substances by either parent

Other factors that a court may look at include: the age of the child, any special needs, the child’s relationship with both parents, and, if the child is old enough, the child’s own wishes.

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