Many domestic and marital issues can arise when a couple decides to get a divorce.
Child custody is one of these issues.
Child custody refers to the practical and legal rights and responsibilities of the parents. In California, child custody laws, there are two types of custody. These are legal custody and physical custody.
Parents are encouraged to share both custody forms when possible (Cal. Fam. Code 3002). If the divorcing parents cannot agree on custody matters, they will end up in court. A judge will decide custody and visitation arrangements based on the child’s best interests. It is done after the parents have met with Family Court Services mediators (Cal. Fam. Code 3011).
There are also special circumstances for how courts will deal with custody if the parents are unmarried.
What Is Legal Child Custody?
In legal custody, a parent or both parents are given the authority to decide their child’s care. It gives the parent/s the authority to decide about the child’s education, religious upbringing, health care, and other essential matters. Legal custody orders are classified into two types:
Joint Legal Custody
Joint legal custody means that both parents will have shared responsibilities and rights to make choices about their child’s health, education, and welfare (Cal. Fam. Code 3003). However, just because parents have shared legal custody does not mean they will share joint physical custody (Cal. Fam. Code 3085).
Sole Legal Custody
Sole legal custody means that only one parent shall be responsible for making decisions regarding a child’s welfare, education, or health (Cal. Fam. Code 3006). Thus, any parent has the sole and exclusive authority to determine the legal rights and obligations of the child. However, sole legal custody does not mean that one parent will have sole physical custody of the child.
“It is essential to remember that in joint legal custody, one parent must not exclude the other parent from making decisions for the child,” explains Leon F. Bennett, a prominent divorce attorney in Woodland Hills. If a parent does this, the other parent can bring this in court to help enforce the custody agreement. On the other hand, if one parent is not doing his or her part in joint custody, the other parent can also bring this to court. That parent can convince the judge that this joint custody does not serve the child’s best interest.
What Is Legal Physical Custody?
In physical custody, a parent or both parents are granted the power to have the child live with them after the separation. If only one parent is given custodial rights, that parent will be responsible for the child’s everyday needs. Like legal custody, the court can grant physical custody to a single parent or both parents. In some cases, a parent may be unfit to be given custody rights.
Physical custody orders come in two types:
Sole Physical Custody
Sole physical custody means that a single parent will be granted the sole right to have the child and live with him or her. That single parent will supervise the child. On the other hand, the other parent will be granted visitation rights (Cal. Fam. Code 3007). The parent who has the sole physical custody is the “custodial” or “residential” parent. In contrast, the other parent is the “non-custodial” or “non-residential” parent and usually enjoys visiting rights.
Joint Physical Custody
Joint physical custody means that both parents will be granted the physical custody rights to the child with significant periods of custody (Cal. Fam. Code 3004). In this custody, the child’s time with each parent is divided based on agreed settlements after the separation. It is either equally or near equally between both parents. In this setup, the parent who spends more time with the child is the primary custodial parent.
The child’s best interest is the primary basis of the court’s decision to divide the child’s custody and grant the visitation rights to the parents. There is another arrangement for joint physical custody. The child will not move from one home to another to be with the parents. Instead, the child stays in the family home. The parents are the ones who move in and out of the house. This arrangement is referred to as “bird’s nest custody” or “nesting.”
What Is Non-Parent Custody?
Non-parent custody is granted to a person who is not the child’s parent that is seen to be in the child’s best interest. Also known as third-party custody, the person granted with the custody rights will act as the child’s legal guardian. This person is responsible for making decisions concerning the child’s education, domicile, health, and other legal matters. In this setup, the legal parents are given a reasonable schedule for their visitation rights to the child (Cal. Fam. Code 3041).
This kind of custody is seldom granted since the court presumes that the child’s biological and legal parents best serve the child’s best interests. However, it is granted in certain instances where both parents are deceased or are unable to support the child due to addiction or incarceration. And it is in the kid’s best interest to be with an adult who can raise and support him or her.
What Is Visitation?
Visitation rights are usually included after the court decides to give sole physical custody to one parent. It is granted to the non-custodial parent to have enough time with the child. Visitation orders come in a variety of forms:
In this visitation order, the parent is following a schedule when to be with the child. It includes the specific days of the week or certain holidays and special events.
A reasonable visitation order doesn’t specify when the children will see each parent. It allows visitation to be flexible based on the agreement of both parents.
Supervised visitation requires someone who will watch over the non-custodial parent while visiting the child. It is applied when a parent and child are not acquainted, or there is a possibility of harming the child with that parent.
If a court finds that a parent’s presence is harmful and is not in the child’s best interest, a court can deny that parent visitation rights.
Divorce is a complex process. It affects both parents and children. If you want your children to have an easy transition, try reaching an agreement with your spouse. If the two of you are having difficulty agreeing, you should consider the services of an experienced family lawyer. Make an appointment with the Woodland Hills Law Offices of Leon F. Bennett. We will assist you in understanding the procedure to protect your child’s best interests.