Child Custody and Visitation

There are two types of child custody in California; Legal and Physical.  Legal custody is almost always awarded jointly to the parents, although there are situations wherein the court makes one parent the sole legal custodian of the child/children.  Physical custody concerns where the child will live and what the time share arrangements between the parents will be.

Legal custody is governed by Family Code § 3003, and typically grants both parents the right 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 decisions involving their life.   Generally, both parents have an equal say in these decisions, even if the children spend the majority of their time with only one of the parents.  In cases where one of the parents is unfit, or incapable of making decisions regarding their children’s welfare, the court may make an order of sole legal custody to the parent deemed capable of handling this burden.

Physical custody is governed by Family Code § 3004, and refers to the living arrangements of the children.  Physical custody is based on the best interest of the child, and is often divided between the parents in a manner that is not equal or joint.   The parent that the child spends the majority of their time with is usually deemed the primary custodial parent, and the other parent will be deemed to have secondary physical custody with visitation rights.   In a case where the children spend an equal amount of time with both parents, the parents will have joint physical custody and will generally share both the time with, and the responsibilities of, raising the children.

Modification of Custody of a custody order can be obtained by showing a change of circumstances.   Some examples of changed circumstances include a change in a parents work schedule, a change in jobs, obligations to a new family, illness, or relocation. Regardless of what the changed circumstances may be, the judge will only modify an order based on the children’s best interest, not the parent’s interests.  A family law judge will try to ensure that the new order continues to allow the other parent to have regular contact with the children.

Relocating is no simple affair after a divorce where children are involved.   Move Away cases may have a profound impact on the children, therefore relocation requires an adequate justification and involves significant challenges before gaining approval from the courts.  Under prior law, a 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 child’s best interest.   Judges have the widest possible discretion to determine what is in the best interest of the children in these areas.

In California, noncustodial parents are usually awarded orders for Child Visitation.   The family court’s main concern is the wellbeing of the child, and in most cases they determine that it is best for children to maintain a healthy relationship with both parents.   To protect children, visitation rights fall under four main categories:

  • Reasonable Visitation – This type of visitation order is usually open-ended and allows the parents to work out their own visitation schedule.
  • Scheduled Visitation – An order for scheduled visitation means that the court will outline the specific times and dates of visitation with the children.
  • Supervised Visitation – If the judge decides that the noncustodial parent is and/or could potentially harm the child, all orders will be supervised by a court-approved adult.
  • No Visitation – If the judge believes that interaction with the noncustodial parent could cause the child physical or emotional harm, they will order no visitation.

If you need help with custody or visitation issues, contact our office for more information concerning your rights and responsibilities in these areas, and a complimentary evaluation of your personal situation.

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