For Californians about to begin a divorce proceeding, child custody often looms as the most difficult issue to be resolved. Unfortunately, many divorcing parents reduce this issue to the simplistic question of “Who gets the kids?” As demonstrated by a review of the state’s child custody laws, child custody in California cannot be reduced to this single question.
California law defines two kinds of child custody: legal custody and physical custody. Legal custody refers to which parent has the right to make decisions for the children about such matters as health care, education and general welfare; and physical custody, which means where the children live.
Legal custody can be either joint or sole. In a joint legal custody arrangement, the parents share the right and responsibility to make decisions about a child’s health, education and general welfare. In a sole legal custody arrangement, one parent is given the sole right and responsibility to make decisions in these areas. Regardless of the type of custody arrangement, legal custody comprises the decision making power on behalf of the child for school, child care, religion, psychiatric or mental health care, physical health care needs such as dental work, choice of health care professionals, travel, and where the child lives.
Physical custody, like legal custody, can be either sole or joint. Joint physical custody does not mean that the child lives with each parent for exactly the same amount of time. Rather, the child’s time with each parent is approximately equal. If one parent tends to spend more time with the child than the other parent, that person is often referred to as the “primary custodial parent.”
Regardless of the way in which the custodial arrangements are made, either through negotiation or a court order, the court must approve the arrangement in all respects. In reviewing the arrangement, the court is required to give top priority to the best interests of the child. This standard is flexible and not easily defined. It depends upon the age of the child, the child’s health, the emotional ties between the parents and the child, the ability of the parents to provide health care, whether the family has experienced domestic abuse, and the child’s connections to school, the home and the community. Divorcing parents who want to participate in child custody decisions may help themselves and their children by keeping these basis elements in mind.
