The California Family Code empowers the court, during a marital court action or at any time thereafter, to make an order for the custody of a child during minority “that seems necessary or proper.” [Ca Fam 3022] However, in exercising their discretion under this provision, courts may be guided by several basic statutory principles.
NON-PARENT CUSTODY
Subject to strict statutory standards (Ca Fam 3041), custody may be granted to a nonparent (who will have exclusive responsibility for the child’s care and control); the parents, at most, will have reasonable rights to visitation.
PHYSICAL CUSTODY
According to Ca Fam 3007, a parent may be granted exclusive physical custody without exclusive legal custody. This means the child resides with and is supervised by one parent, subject to the other parent’s visitation rights; but the custodial parent does not have sole decision-making power regarding other matters affecting the child.
This means that a parent has the right to have a child live with him or her. Some states will award joint physical custody when the child spends significant amounts of time with both parents. Joint physical custody works best if parents live relatively close to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine.
Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives (called the “custodial” parent) will have sole or primary physical custody, and the other parent (the noncustodial parent) will have the right to visitation or parenting time with his or her child.
LEGAL CUSTODY
According to Ca Fam 3006, a parent may be awarded the exclusive right and responsibility to make decisions relating to the child’s health, education and welfare; but unless exclusive physical custody is also granted, that parent does not have sole control over the child’s residence and supervision.
In other words, legal custody of a child means having the right and the obligation to make decisions about a child’s upbringing. A parent with legal custody can make decisions about the child’s schooling, religious upbringing and medical care, for example. In many states, courts regularly award joint legal custody, which means that the decision making is shared by both parents.
If you share joint legal custody with the other parent and you exclude him or her from the decision-making process, your ex can take you back to court and ask the judge to enforce the custody agreement. You would not get fined or go to jail, but it will probably be embarrassing and cause more friction between the two of you — which may harm the children. If you believe the circumstances between you and your child’s other parent make it impossible to share joint legal custody (the other parent won’t communicate with you about important matters or is abusive), you can go to court and ask for sole legal custody.
SOLE CUSTODY
According to Ca Fam 3006, a parent may be awarded the exclusive right and responsibility to make decisions relating to the child’s health, education and welfare; but unless exclusive physical custody is also granted, that parent does not have sole control over the child’s residence and supervision.
In other words, one parent can have either sole legal custody or sole physical custody of a child.
Courts generally would not hesitate to award sole physical custody to one parent if the other parent results deemed unfit, for example, because of alcohol or drug dependency or charges of child abuse or neglect.
JOINT CUSTODY
Ca Fam 3002 states that under a “pure” joint custody plan, neither parent has sole physical or legal custody; both have authority to control and supervise the child, and the child’s physical presence is shared.
Parents who do not live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody may be:
Joint Legal Custody
Joint legal custody means that both parents share the right and responsibility to make decisions regarding the child’s health, education and welfare. Established in Ca Fam 3003.
A joint physical custody award means each parent has “significant periods” of physical custody. Physical custody must be shared in such a way as to assure the child “frequent and continuing contact with both parents,” subject to Ca Fam 3011 and 3020; but that does not mean the child’s time must be equally divided with each parent (i.e., one parent can still be the “primary caretaker”) as established in Ca Fam 3004.
Joint Custody Agreements
When parents share joint custody, they usually work out a schedule according to their work requirements, housing arrangements and the children’s needs. If the parents cannot agree on a schedule, the court will impose an arrangement. A common pattern is for children to split weeks between each parent’s house or apartment.
Other joint physical custody arrangements include alternating months, years, or six-month periods, or spending weekends and holidays with one parent, while spending weekdays with the other.
There is even a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out, spending their out time in separate housing of their own. This is commonly called, “bird’s nest custody” or “nesting.”
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Divorce cases are very difficult and complex. You need an experienced Los Angeles Family Attorney to guide you through the legal process. Contact our law firm today at 562-439-9001 if you or someone you know needs the help of an experienced family law attorney. We will be here for you when you call. Schedule a free consultation!
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This is intended asgeneral advice and should not be interpreted as legal advice. Each situation is unique and requires specific analysis of relevant contracts, facts and legal obligations.
