Custody of the children may be held by both parents (joint custody) or by one parent (sole custody). Additionally, California distinguishes between physical and legal custody:
- If a parent has sole legal custody, that parent has the exclusive right and responsibility to make decisions about the health, education, and welfare of the child.
- If a parent is awarded sole physical custody, the child resides with that parent and is under that parent’s supervision.
- If parents share joint legal custody, then both parents are legally entitled to make such decisions. The court may order visitation to the parent who does not have physical custody.
In California, child custody can be assigned in a number of ways:
- A parent may have sole legal and sole physical custody.
- A parent may have joint legal and sole physical custody.
- The parents may share both legal and physical custody.
- The parents may share physical custody, while one parent has sole legal custody.
The state does not make a presumption that favors any particular type of custody assignment. Rather, both the court and the family are granted “the widest discretion” to establish a parenting plan that protects and ensures the best interests of the child.
California law requires parties who cannot agree on a child-custody agreement to attend mediation, to try to resolve issues of custody and visitation. However, mediation and negotiation are only as effective as the other party’s willingness to compromise. Litigation may be necessary. Although the court will issue a temporary child-custody order based on the recommendations of the mediator, both parents have a statutory right to a child-custody trial. It is in your best interest, and that of your children, to rely on an attorney to advise you
Child Custody during mediation and advocate for you during the adversarial judicial process.
Joint legal custody means that you and your former spouse will share equally in the decision making for your child. If you and the other parent are unable to reach agreement, you may need to return to mediation, or to court, for the decision to be made.
In order for joint legal custody to be successful, both parents must be committed to the following:
- Effective and open communication between the parents concerning the child
- A strong desire on the part of both parents to co- parent together
- A history of active involvement of both parents in the child’s life
- Similar parenting values held by both parents
- A willingness on the part of both parents to place the child’s needs before their own
- Both parents’ willingness to be flexible and compro- mising about making decisions concerning the child
Physical custody refers to the physical location of the children; that is, where they spend their time. Like legal custody, it may be awarded to either parent or to both parents jointly. Joint physical custody is sometimes referred to as shared physical custody. If one parent is awarded sole physical custody, then the other parent is typically awarded significant visitation. Detailed provisions are made for days of the week, school breaks, summer, holidays, and vacations.
As you deal with custody issues in your divorce, keep your children’s developmental and emotional needs in mind at all times. Custody arrangements can often change as the children become older and are more able to spend larger blocks of time away from one parent. Both parents should recognize that, regardless of the physical custodial arrangement reached at the time of the divorce, there may be many changes to the arrangement as the children become older. It is more important to arrange a physical custody and visitation schedule based on the needs of your children, rather than on your own needs.
