Family law matters can be very emotional for all parties involved, especially the children. Unfortunately, child custody decisions often present with the most difficulty and disagreement between the separating parents. When parents going through a divorce are either unwilling or unable to agree on issues of timeshare (sometimes called “physical custody,” “access” or “visitation”) and legal custody (basic decision-making authority) of the children, the court will make the custody determinations for them. In California, the court will decide child custody issues based on what is determined by the judicial officer to be in the best interest of the child.
Physical Custody vs. Legal Custody
There are two types of custody awarded by the court: physical custody and legal custody. Physical custody is what most parents think of in the context of “child custody,” since the physical custodian is with whom the child will typically spend most of their time. Even when one parent is awarded sole physical custody, the court will almost always set a visitation (or “access” or “timeshare;” same concept, different labels) schedule for the other parent.
Legal custody, on the other hand, deals with who will have the right to make decisions relating to the health, safety, and welfare of the child, the so-called “big” decisions in the child’s life. While a parent with physical custody has the discretion to make day-to-day decisions for the child, the legal custodian will have the right to make more important decisions like what school the child will attend, what religion they will be raised under, as well as important medical decisions. In most cases, physical custody will be awarded to the parent that the child will spend the most time with, and both parents will share legal custody. It is not uncommon, however, for the court to assign one parent as the “tie-breaker” in the event the parents cannot agree on an important issue. For example, if parents are struggling to get along with each other, in order to avoid conflict in any given area of decision making the court may award joint legal custody to both parents, but then give one parent tie-breaking authority on issues related to education and give the other parent tie-breaking authority in the area of health care decisions. Or one parent (typically the one the court finds to be the more reasonable one) might get tie-breaking in all major areas, which for all practical purposes is the equivalent of that parent has sole legal custody; the difference is subtle but nonetheless significant.
Joint Custody vs. Sole Custody
The court may award either parent sole custody of the child, or award both parents joint custody. Most experts agree (and the California Legislature has so determined) that both parents should be involved in their child’s upbringing and share parenting responsibilities even after divorce as much as is reasonably practical. As such, the court will try to award joint custody whenever possible. Some courts will simply state that the so-called non-custodial parent will have “reasonable visitation,” but in this author’s opinion, it is always best to get a detailed and specific set schedule in the custody orders so there will always be a “fall back” position in the event the parents cannot agree.
Child custody determinations are decided on a case-by-case basis and depend on the particular facts and circumstances of your divorce. Given the discretion of the court in awarding child custody and the significance of what is at stake, if it is affordable it is important to retain the counsel of a knowledgeable family law attorney who is experienced with child custody hearings to assist. This is not required, just advisable.