Child Custody and Visitation

What is the difference between joint custody and sole custody? What is the difference between legal custody and physical custody? What rights do I have to make decisions for my child in California?

Legal custody is how parents make decisions relating to the health, education, and welfare of their child.

Physical custody is where the child lives.

Parenting plan (time-share or visitation) is the schedule providing when the child spends time with each parent.

The court may award legal and physical custody in different arrangements. For example, the parties may share both joint legal custody and joint physical custody. Or, the court may award sole legal custody and sole physical custody to one party. Another example is the parties may share joint physical custody, but one party has sole legal custody. Conversely, the court may grant joint legal custody to both parties, but sole physical custody to one party.

Physical Custody

Joint physical custody means each parent has significant periods of time with the child. When an order of joint physical custody is made, the goal is for physical custody to be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.

Under a joint physical custody order, it is possible that the parenting plan may not be exactly 50/50. When one parent has more time with the child under a joint physical custody order, that parent is the “primary custodial parent” or the “primary caretaker”. These designations may be helpful to distinguish the different levels of physical responsibility for a child, but these terms have no legal meaning and are not the equivalent of sole physical custody.

Sole physical custody means a child shall reside with and be under the supervision of one parent. However, this does not mean the parent with sole physical custody shall automatically have the child 100% of the time to the complete exclusion of the other parent. Under a sole physical custody order, the court may order visitation for the other parent.

Legal Custody

Joint legal custody means that both parents share the right and responsibility to make decisions relating to the health, education, and welfare of the child. Joint legal custody can be confusing as the term “joint” implies that the parties need to make the decisions jointly. This is not true. In fact, in exercising joint legal custody, each party may act alone in making decisions for the child, so long as the decision does not conflict with any orders about the physical custody of the child. However, in order to avoid tension and conflict between the parents, it is generally advisable for parents with joint legal custody to consult with one another before making big decisions about the child’s health, education, and welfare.

Even when parents share joint legal custody and are allowed to make decisions alone, the court can order that certain decisions be made with the consent of both parties. Parents commonly request that the following decisions require mutual consent under a joint legal custody order: (1) Enrollment in or leaving a school; (2) Beginning or ending mental health services; (3) Selection of healthcare providers; (4) Obtaining or renewing a passport; and (5) Driver’s education.

Sometimes parents have extreme difficulty with decision making for a particular area of a child’s life. In this instance, it is possible for the court to order that while the parties share joint legal custody, one parent will have special decision making or final say in certain specific areas only. For example, the parents may share joint legal custody, but Father may have responsibility for making the final decision with regard to the child’s mental health treatment, or Mother may have the final say with regard to the child’s extracurricular activities.

Sole legal custody means one parent has the complete right and responsibility to make decisions related to the health, education, and welfare of the child. Sole legal custody does not mean that parental rights are terminated; the parent without legal custody is still a legal parent of the child. The parent without legal custody still has the right to request a custody modification from sole legal custody to joint legal custody. In addition, the parent without legal custody still retains the right to parent the child as the parent sees fit (as long as the parenting decisions do not conflict with any legal custody or physical custody orders).

Contact a Ventura County Family Law Attorney for assistance with crafting a physical and legal custody order that meets your family’s needs. Call the Law Office of Christine Nguyen Thomas at (805) 351-8866 for a consultation. We serve Ventura County residents, including the cities of Camarillo, Oxnard, Ventura, Ojai, Port Hueneme, Santa Paula, Moorpark, Simi Valley, and Thousand Oaks.

 

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