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Divorce attorney Michael Benavides represents parents in child custody matters with the goal of securing child custody arrangements that meet the child’s best interests. For an affordable hourly fee Michael can help you navigate mediation and establish a reasonable custody arrangement, or litigation becomes necessary represent you at trial with your child’s welfare in mind. To learn more about your parental rights call our Sacramento divorce attorney at (916) 250-1610 for an office consultation.
Difference between Legal and Physical Custody in California
When you’re in the middle of divorce don’t rely on legal advice from friends or family. Although they may mean well, their experience with divorce and child custody may differ from your own. Only a divorce attorney can help you gain a solid understanding of legal terms and their implications to help you make sound decisions in your case. Here are some basic concepts of child custody in California.
Legal v. Physical Custody
California family courts provide two types of custody: legal and physical. The best-case scenario is for parents to share both types of custody wherever possible. When divorcing parents can’t agree on custody issues a judge will make custody decisions based on the child’s best interests. This may not be the most desirable situation as hands-on parents know their children better than a family court judge.
Legal custody gives a parent the right to make major decisions about a child’s welfare, health, and education including:
- School – where the child will attend.
- Choice of religious activities.
- Medical care, except in emergency situations.
When a parent gets sole legal custody, that parent has the right to make all major decisions relating to the health, education and welfare of their child. It also means that a parent can make such decisions without getting the other parent’s input.
In most cases, joint legal custody is ordered. This means you and the other parent share in the right and responsibility to make decisions for your child. Joint legal custody is very common in California. However, there are situations that might prevent parents sharing custody:
- Parents are unable to co-parent or make decisions together.
- One parent is deemed unfit or incapable of making decisions regarding the general welfare of the child.
It is important to understand that even if you get joint legal custody, it does not mean you will share joint physical custody. The parent with physical custody has the right to have the child physically present in the home. If your child lives primarily, or even exclusively, with you, then you are considered the custodial parent. The other parent is considered the non-custodial parent who also has visitation rights.
The family law court in California decides who gets physical custody based on what is in the best interest of the child. For example, if you can provide evidence in family court that a parent has a history of domestic violence or abuse, courts may order that any and all visits with the child be supervised by an approved third party. In cases of extreme abuse, visitation with the abusive parent may not be allowed.
Joint and Sole Physical Custody
Joint physical custody means that both parents have significant periods of physical custody. If a child’s time is divided equally between the parents, the parents are sharing joint physical custody. Both parents will equally, or close to equally, share time with their child. An order for sole physical custody means that a child will live with one parent, with assigned visitation time with the other parent.
Child’s Best Interest
The best interest of the child standard is a broad legal standard that governs the family court’s determination in matters of custody and visitation. In essence, the court will look to which set of circumstances viewed from the child’s standpoint in relation to an alternative set of circumstances is in the child’s best interest. To guide the court in this determination the judge, guided by the advocacy of a skilled child custody lawyer, will take the following into account:
- The child’s health, safety and welfare.
- The nature and amount of the child’s contact with both parents.
- History of drug or alcohol abuse.
- History of abuse.
- Any other relevant factors.
Health, Safety and Welfare are Paramount
Not all of the factors that guide the court’s custody determination are weighted equally. The California legislature has declared it’s the State’s public policy that the health, safety and welfare of the child must be the judge’s primary concern in custody and visitation orders. Accordingly, while it is also public policy that children have frequent and continuing contact with both parents (Family Code 3020(b)), if said contact jeopardizes the child’s health, safety and welfare the court must ensure the safety of the children and all family members.
As is evident from the multi-factored nature of the court’s legal standard for child custody and visitation decisions, skilled advocacy is key to guiding the court’s determination. Certain factors may weigh in the client’s favor and should be emphasized while detrimental ones discounted. Accordingly, investing in skilled advocacy early in the contested custody case can help the client achieve a favorable outcome.
As a parent going through divorce or separation you have many custody-related questions. Before you make any final decisions, you should contact an experienced divorce attorney in Sacramento familiar with your local family court. Having general knowledge of legal and physical custody, combined with the help of an experienced family law attorney, can help reduce frustration and provide you with greater assurance that you’re doing everything you can to protect your child’s best interest and your parental rights.