Child Custody and Visitation

There are two types of child custody in California: Legal and Physical Custody.

Legal Custody

Legal custody is governed by California Family Code section 3003. It involves the right of the parents to make decisions regarding their children’s health, education and welfare. These decisions include the selection of the children’s doctors, the schools they attend, their religious instruction, their after school activities, and basically, any major decision involving their life. Generally, both parents are awarded joint legal custody, which means that they both have an equal say in these decisions, even if the children spend the majority of their time with only one of the parents. In the rare instance where a court will order something less than joint legal custody, there must be a showing that one of the spouses is either an unfit parent, or otherwise incapable of making decisions regarding their children’s welfare. The burden of making that showing will be on the party who is making the allegations.

Physical Custody

Physical custody refers to the living arrangement of the children and is governed by California Family Code section 3004. Unlike legal custody, it is not uncommon for there to be an unequal division of physical custody. Thus, if the children spend the majority of their time with one of the parents, that parent will be deemed to have primary physical custody The other parent will have visitation rights. If the children spend an equal amount of time with both parents, then the parents will be deemed to have joint physical custody.

Notwithstanding the fact that physical custody may be unequal, family law judges look favorably upon a parent who understands the need for their children to have regular access to both parents. Thus, it is important that people involved in custody disputes understand that they will get a lot further along in the process if they cooperate with one another, and try to reach a consensus.

Modification of Custody Orders

Court ordered custody arrangements may always be modified by a showing of changed circumstances. Examples of changed circumstance include a change in a parents work schedule, a change in jobs, obligations to a new family, and relocation. A court will modify an order based on the children’s best interest. Again, a family law judge will look favorably on a parent who allows the other parent to have regular contact with the children.

Move Away Cases

It is not uncommon for parties to relocate outside of California for job opportunities or personal reasons. Under prior law, the primary custodial parent had the presumptive right to relocate to another geographical location with his or her children. However, under recent case law, that trend is changing. The non-custodial parent now has the right to challenge that decision, and to make a showing that relocation is not in the children’s best interest. The burden is on the non-custodial parent to show that relocation would constitute a significant determent to the children. Judges have the widest possible discretion to determine if the children will be allowed to move away with their primary custodial parent, or if the custody order should be modified and the child should remain in California with the other parent. The factors that a court will consider in reaching this decision include: 1) the age of the children, 2) their relationship with both parents, 3) the reason for the move, 4) the distance of the move, 5) the extent to which both parents have been cooperative with one another, and, 6) the children’s preference, depending upon their age. Again, a court will look favorably upon a parent who has previously allowed frequent and regular contact with the other parent, and who encourages the children to have a relationship with the other parent.