In California, what is the difference between legal custody and physical custody?
Over the years, I have come across a lot of misconceptions about the meaning of physical custody versus legal custody. We hear co-parents throwing terms like “sole custody”, “joint custody”, or “primary physical custody” around without having any real understanding of what those terms mean. Even some experienced attorneys, who should know better, get it wrong. The confusion is so widespread, that I almost always give my clients a bit of a primer about what the different terms for custody arrangements in the code mean.
Legal Custody. Legal custody has to do with the parent’s ability to make decisions relating to the health, education and welfare of the child. The California Family Code describes sole legal custody as one parent having the right and responsibility to make decisions relating to health, education, and welfare of the child. (Fam. Code. §3006.) Joint legal custody simply means that both parents share the right and responsibility to make the decisions relating to the health, education, and welfare of the child. (Fam. Code §3003.) Joint legal custody is typically the default in California. It is a rare case where one party is awarded sole legal custody. Typically, sole legal custody is reserved for cases when the non-custodial parent has a serious problem like a drug history or history of abuse towards the child. It can also happen when the non-custodial parent has simply been absent and has not been a factor in the child’s life. But, in almost all other cases, legal custody will be held jointly. The courts are strident in enforcing joint legal custody. It is a big “no, no” in most cases for one parent to make decisions unilaterally. For instance, if a parent wishes to take the child to a doctor for non-emergency treatment, there is a duty to inform the other parent of the appointment in advance so that the other parent has an opportunity to attend the appointment. Both joint legal custodians have the right to be present and participate in decision making. It is also taboo for one parent to unilaterally enroll a child at a school or withdraw a child from a school without the approval of the other parent. The court can see this as evidence of a parent being uncooperative potentially jeopardizing the offending parent’s custody rights.
Physical Custody. Physical custody refers to the time that the child is in the physical care and supervision of a given parent. Sole physical custody means that a child resides with and is under the supervision of one parent, subject to the court’s powers to order visitation to the non-custodial parent. (Fam. Code §3007.) The parents have joint physical custody when each of the parents has significant periods of physical custody. The idea is that the time with the child is shared so that the child has frequent and continuing contact with both parents. (Fam. Code §3004.) Occasionally, one might hear the term “primary physical custody“. We often find this term in settlement agreements to describe joint custody arrangements, where one parent in a joint custodial relationship has more time with the child than the other parent. However, it has no legal meaning under the code.
[The key definitions relating to custody issues in California can be read at California Family Code sections 3000 to 3007.]
It is easy to get caught up in the semantics and nomenclature when trying to come up with a good co-parenting plan. Remember, in a divorce, your family is not ending. The people are all the same—mom, dad and the kids. Your task with your divorce is to restructure the relationship between the parents from married people to unmarried people, who, although are no longer in love with each other, still love their children. There is a way to do this so that your kids will be emotionally “ok” and there are many ways to do it where the kids get hurt. Remember, it is better in most cases, for a child to have two loving parents in her life than just one. If parents can focus on the shared love they have for their children and not on turf battles or who “wins” between the parents, the kids have a much easier time of it.
[The research is very clear about the effects of parental conflict on children after divorce. For further reading, I recommend The Good Divorce by my friend and colleague Constance Ahrons, Ph.D. and her follow up book We’re Still Family. For Dr. Ahron’s website, go to http://constanceahrons.com/.children, custody, mental health, parenting comment below, or link to this permanent URL from your own site.