Determining a custody arrangement can be the most emotionally difficult and contentious obstacle in a divorce proceeding. Two custody determinations must be made: legal custody and physical custody.
Legal custody is the right to make major decisions about a child’s welfare, health, and education. Examples of these types of decisions include:
- where a child will go to school;
- whether a child will engage in religious activities; and
- whether a child should receive medical care (except in emergency situations).
Joint Legal Custody
Under California law, joint legal custody means that both parents share in the right and responsibility to make decisions relating to the health, education, and welfare of a child. Joint legal custody is very common in California. The fact that parents share joint legal custody, however, does not necessarily mean they will share joint physical custody.
Parents typically share joint legal custody, unless one of the following is true:
- the parents are completely unable to make decisions together;
- one parent is deemed unfit;
- one parent is incapable of making decisions regarding the upbringing and general welfare of the child; or
- it would be in the child’s best interests for one parent to have sole legal custody.
Sole Legal Custody
Sole legal custody means that only one parent has the right to make all major decisions relating to the health, education, and welfare of a child, and may make such decisions without getting the other parent’s input. The fact that a parent has sole legal custody does not mean that parent will also have sole physical custody.
Physical custody refers to where a child will live after a divorce or separation. Physical custody is quite different from legal custody. The parent with physical custody has the right to have the child physically present in the home. If a child lives exclusively or primarily with one parent, that parent is usually referred to as the “custodial” or “residential” parent. The other parent is considered the “non-custodial” or “non-residential” parent and typically has visitation rights.
Joint Physical Custody
Although sole physical custody may be granted when it is in the best interest of the child, all custody decisions start out in favor of some form of joint physical custody. Joint physical custody means that both parents share time with the children equally or close to equally.
Sole Physical Custody
Sole physical custody means that a child resides primarily with one parent, subject to the court’s authority to order visitation time with the other parent.
Complex Custody and Move Away Requests
At Laughlin Legal, we assist clients with both simple and complex custody and visitation matters, including “move-away” cases, where one parent wants to relocate with the child outside of California, or even outside the country. If you are a client at Laughlin Legal, our attorneys will make sure your parental rights are protected to the fullest extent possible, no matter what the situation.