Custody Basics – Who gets the kid?

Types of custody

There are two types of custody: legal and physical (Family Code §§3002-3007).

“Legal” custody gives the authority and responsibility for making decisions concerning the child’s health, education, and general welfare (Family Code §§3003, 3006).

“Physical” custody, on the other hand, refers to the periods during which the child resides with and is under the supervision of a parent or another designated party (Family Code §§3004, 3007).

Custody may be granted solely to one parent, known as “sole custody,” or it may be awarded jointly to both parents, termed “joint custody” (Family Code §§3002-3007).

The type of custody (legal or physical) and whether it’s held jointly or solely can significantly influence future court decisions, such as parental relocation or changes in the child’s residence and where the child attends school.

Sole Custody

Sole legal custody means one parent has the exclusive right and responsibility to make the decisions relating to the health, education, and welfare of the child (Family Code §3006).  The other parent may be consulted, but he or she has no control over where the child goes to school, what healthcare the child receives, or any other decisions about the child.

Sole physical custody means the child lives with and is under the primary supervision of one parent, subject to court-ordered visitation by the other parent (Family Code §3007)

Joint Custody

“Joint custody” encompasses both joint physical custody and joint legal custody, as defined in Family Code §3002.

“Joint legal custody” means both parents share the authority and responsibility to make decisions concerning the health, education, and welfare of the minor child (Family Code §3003).

Joint legal custody does not mandate that parents must jointly make every decision pertaining to the child; however, the judge may issue an order specifying which decisions require joint input from both parents. Otherwise, each parent has the ability to make decisions independently.

“Joint physical custody” means each parent enjoys substantial periods of physical custody.

Custody Presumption

There exists a presumption favoring joint custody when both parents have consented to it, either by agreement or in open court during a custody hearing, as outlined in Family Code §3080. However, the court must still carefully consider the factors determining the child’s best interests, as described in Family Code §3011, when applying this presumption.

In cases where parents do not reach an agreement on joint custody, the court may still order it upon the request of either parent, as per Family Code §3081. Once again, the court must assess and apply the factors delineating the child’s best interests outlined in Family Code §3011.

Nevertheless, there exists no inherent preference or presumption for or against joint legal custody, joint physical custody, or sole custody. The court and the family are granted broad discretion to select a parenting plan that serves the child’s best interests, in accordance with Family Code §3040(c).

Factors Considered by California Courts

When making a determination about child custody, California courts consider a variety of factors, including:

• The child’s age, gender, and health
• The emotional ties between the child and each parent
• The ability of each parent to provide for the child’s basic needs, such as food, clothing, and shelter
• The ability of each parent to provide for the child’s emotional and developmental needs
• The child’s ties to his or her home, school, and community
• Any history of domestic violence or substance abuse by either parent
• The child’s preference, if the child is old enough to express a preference
• The ability of the parents to cooperate and communicate with each other regarding the child’s needs
• Any other factors that the court deems relevant to the child’s well-being.