Child custody arrangements are often the most contentious part of any divorce proceeding. In California, a family court judge must consider “the best interests of the child” in determining custody arrangements. There is no fixed definition of “best interests”; the court must look at all facts and circumstances, including the child’s age, family and community ties, as well as the parents’ relative ability to provide financial and emotional support.
It is important to understand that child custody arrangements fall into two categories: legal and physical custody. Legal custody refers to the parent who makes important life decisions regarding the child’s health, education and maintenance. Physical custody simply refers to who the child lives with.
A court may award legal custody to one or both parents. If there is joint legal custody, each parent may make decisions for the child, even without the consent of the other parent. It is, of course, advisable for parents with joint legal custody to try and reach a consensus in order to avoid any confusion.
Only a parent with legal custody can make decisions about the child’s home, school, religious instruction, activities, health care or travel. In the event a court awards sole legal custody to one parent, that parent’s wishes on these issues are binding, even if the other parent strongly disagrees.
If one parent is awarded physical custody, then the child will live with that parent most of the time. If the court agrees to joint physical custody, then the child will live with both parents. This does not, however, necessarily mean the child must spend exactly 50% of his or her time with one parent and 50% with the other parent. One parent will likely be the “primary” custodial parent.
A parent who does not have physical custody may still have guaranteed, regular access to the child through a visitation order. Such an order establishes the terms and conditions whereby one child may spend time with the non-custodial parent. A visitation order may provide for a precise schedule—e.g., the child spends every other weekend with the non-custodial parent—or it can leave the matter open-ended for the parents to work out for themselves on an ongoing basis. In some cases, if there are safety concerns, an order may provide for supervised visitation, where a custodial parent or other adult is present when the child is with the non-custodial parent.
Do We Need a Judge to Determine Custody Arrangements?
In most cases, parties are able to work out child custody arrangements for themselves. A judge must still sign off on any arrangement to make it legally binding. If the parents fail to reach an agreement, a judge will then step in and determine custody arrangements according to the best interests of the child. If you are considering a divorce and don’t want to lose custody of your children it is important to contact an experienced family law attorney. Contact our offices today.