What is the Difference Between Legal Custody and Physical Custody?
Before entering into the arena of family law and custody battles, people tend to talk about “custody” in very general terms. You hear about someone having “custody” of their kids or parents “sharing custody” of their kids. When parents first find themselves in front of a child custody attorney, family court judge, or child custody mediator, they often still use these general terms, vehemently advocating for “full custody” of a child. These parents often find themselves frustrated, feeling like no one is understanding or listening to them.
Having a basic understanding of how child custody laws in California work is important for any parent to better be able to communicate what child custody arrangement would be in the best interests of their child.
You can’t expect to win a custody battle or effectively reach a child custody agreement outside of court if you don’t even know what to request in court or what you can and can’t agree to in your child custody agreement.
Here is a complete beginner’s guide to child custody laws in California.
Types of Child Custody in California
Child custody determinations may arise in any of the following matters under Family Code 3021:
- Paternity (parents who were never married)
- Legal Separation
- Domestic Violence Restraining Orders
- Dissolution of Domestic Partnership
No matter what kind of proceeding the child custody matter originates in, in California family law there are two types of custody: legal custody and physical custody. Every single child custody order, whether reached outside of court by agreement, or issued by a family court after a full trial, contains provisions for legal and physical custody.
Legal Custody of a Child in California
Legal custody has to do with who has the authority to make major decisions about the health, education, and welfare of a child.
A parent with legal custody of a child makes the decisions about:
- What school the child attends, and what childcare provider is utilized;
- What religious activities the child participates in;
- What psychiatric, psychological, and other mental health counseling or therapy the child receives;
- Which doctors, dentists, orthodontists, and other health professionals the child sees;
- What extracurricular activities the child participates in;
- Where the child resides (where the child will live).
Legal custody falls into two categories:
- Joint Legal Custody. Both parents equally share the right and responsibility to make major decisions about the welfare, health, and education of a child (see Family Code 3003).
- Sole Legal Custody. One parent has the right and responsibility to make major decisions about the welfare, health, and education of a child (see Family Code 3006).
1. Joint Legal Custody in California
An example of language found in a court order or stipulation (agreement) for joint legal custody is:
The parents shall share JOINT LEGAL CUSTODY of the minor child: CHILD’S NAME, born CHILD’S DOB.
A. The parents shall share in the responsibility to make decisions regarding the health, education, and welfare of the child.
B. Each parent shall notify the other of the name and address of each health practitioner who examines or treats the child, such notification to be made within 3 days of the commencement of the first such treatment or examination.
C. Each parent is authorized to take any and all actions necessary to protect the health and welfare of the child, including but not limited to consent to emergency surgical procedures or treatment. The parent authorizing such emergency treatment must notify the other parent as soon as possible of the emergency situation and of all procedures or treatment administered to the child.
D. Each parent will have access to the child’s school, medical, and dental records and the right to consult with those professionals providing services to the child.
E. Each parent shall be designated as a person the child’s school is to contact in the event of an emergency.
F. Notification of parent’s current address. Each parent shall keep the other advised at all times of his/her current residence address, telephone numbers (home and work), the child’s school, and the location of any place where the child will be spending any extended period of lime four days or longer.
Neither parent may use such information for the purpose of harassing, annoying or disturbing the peace of the other or invading the other’s privacy. If a parent has an address with the State of California’s Safe at Home confidential address program, no residence or work address is needed.
G. Notification of proposed move of child when that move will impact the ability of the child to visit regularly with the non-custodial parent. The parent intending to move the child must notify the other parent 45 days prior to any planned change in residence of the child.
The notification must state, to the extent known, the planned address of the child, including the county and state of the new residence. The notification must be sent by certified mail, return receipt requested.
H. In exercising joint legal custody, the parties will share in the responsibility and discuss in good faith matters concerning the health education, and welfare of the child. The parties must discuss and consent in making decisions on the following matters:
1) Enrollment in or leaving a particular private or public school or daycare center;
2) Beginning or ending psychiatric, psychological, or other mental health counseling or therapy;
3) Participation in extracurricular activities;
4) Selection of a doctor, dentist, or other health professional (except in emergency situations).
I. If a party does not discuss and obtain the consent of the other party to the decisions indicated in item H above,
1) He or she may be subject to civil or criminal penalties.
2) The court may change the legal and physical custody of the minor child.
J. In all other matters in exercising joint legal custody, the parents may act alone as long as the action does not conflict with any orders concerning the physical custody of the child.
Those parents who share joint legal custody of their child should communicate with one another and confer prior to making decisions about the categories above, but they do not have to agree on every decision. Either parent can make a decision alone, but to avoid unnecessary problems that will land them back in court, both parents need to communicate with each other in making decisions together. This communication is called “co-parenting” and is a necessary tool for parents raising a child together. For help honing this skill, a co-parenting therapist can assist parents to better communicate with their co-parent in making decisions for their children.
Generally, in California, parents tend to end up sharing joint legal custody of their children, unless there is some reason for the court to award sole legal custody to one of the parents.
2. Sole Legal Custody in California
An example of language found in a court order or stipulation (agreement) for sole legal custody is:
FATHER/MOTHER shall have SOLE LEGAL CUSTODY of the minor child: CHILD’S NAME, born CHILD’S DOB.
A. Each parent will have access to the child’s school, medical, and dental records and the right to consult with those professionals providing services to the child.
This language notably lacks the requisite communication and joint authority contained in the joint legal custody example. The reason for that is simple: a parent without legal custody of a child does not have the authority to make such decisions and does not need to be consulted prior to such decisions. If a parent has sole legal custody, they can make all major decisions regarding the child without consulting the other parent. The other parent can still make small, day-to-day choices when caring for the child, however.
Non Custodial Parental Access to Medical Records of Child [Family Code 3025]
Generally, parents cannot be prevented from having access to their child’s school, medical, and dental records whether they have legal custody of the child or not. California Family Code 3025 provides rights, even to noncustodial parents, to a child’s “medical, dental, and school records.”
This general rule can be complicated by federal rules under certain circumstances, however. The main federal law that relates to a parent’s ability to access their child’s medical records is the Health Insurance Portability and Accountability Act (HIPAA). The HIPAA Privacy Rule specifically disallows parental access to their child’s records when state laws allow minors to consent for their own procedures. Here is a summary of procedures for which minors may consent in California (i.e. parents cannot access these records):
- Minors of any age may consent to procedures relating to:
- Birth control (except sterilization);
- Sexual assault.
- Minors 12 years of age or older may consent to procedures relating to:
- HIV testing (if competent to provide informed consent);
- Federally-assisted alcohol and drug counseling;
- Outpatient mental health treatment;
- Treatment for STIs or contagious and reportable diseases.
Physical Custody of a Child in California
Like legal custody, physical custody falls into two categories:
- Joint Physical Custody. Both parents have significant periods of physical custody of the child (see Family Code 3004).
- Sole Physical Custody. The child resides with one parent and visits with the other parent (see Family Code 3007).
1. Joint Physical Custody of a Child in California
Joint physical custody does not mean that parents have equal time with the child, or that the child spends exactly half his/her time with each parent. Rather, joint physical custody simply means that both parents have substantial and frequent time with the child, and both parents have an equal responsibility to physically care for the child.
Oftentimes, joint physical custody is also accompanied by a provision awarding one parent “primary physical custody” of a child. This simply means that the parent with “primary physical custody” is the parent with whom the child primarily resides for school enrollment purposes.
An example of language found in a court order or stipulation (agreement) for joint physical custody is:
The parties shall share JOINT PHYSICAL CUSTODY of the child. Both parents shall share the physical care, custody, and control of the child reasonably between them in such a manner as to ensure that the child maintain frequent and continuing contact with both parents. FATHER/MOTHER’S home shall be considered the child’s primary residence for school enrollment purposes.
1. REGULAR TIME SHARE PERIODS
A. MOTHER’S PARENTING TIME:
1) See our Common Child Custody Arrangements article for custody schedule options and examples.
B. FATHER’S PARENTING TIME:
1) FATHER shall have the minor child at all other times.
C. BOTH PARENTS shall have as much additional parenting time with the child as can be agreed upon by the parents.
Joint physical custody works best when:
- The parents live fairly close to each other and a joint arrangement is logistically feasible.
- Both parents want to be very involved in raising their child.
- Both parents agree that it’s in the best interest of their child.
- The parents communicate reasonably well and can make decisions together.
- There is no history of child abuse, domestic violence, or kidnapping.
Joint physical custody can work with almost any child custody schedule and arrangement. A few examples of common parenting plans that are used by parents with joint physical custody are:
- Week On/Week Off [Alternating weeks]. Where the parents share custody of their child on a weekly basis. This means that exchanges occur on a particular day, at a particular time (for example, every Friday at 6 p.m.), every week.
- 2-2-3 Schedule. Where the child is with Parent A for 2 days, Parent B for 2 days, and then back to Parent A for 3 days. The next week, it switches.
- 2-2-5 Schedule. Where the child is with Parent A for 2 days (the same 2 days every week, e.g. Monday at 8 a.m. until Wednesday at 8 a.m.), Parent B for 2 days (the same 2 days every week e.g. Wednesday at 8 a.m. until Friday at 8 a.m.), then the parents alternate the weekends (e.g. Friday at 8 a.m. until Monday at 8 a.m.).
- Every Weekend Schedule. Where the child is with one parent during the week and the other parent every weekend.
- 3 Weekends Per Month. Where the child is with one parent during the week and for 1 weekend per month, and the other parent for 3 weekends per month (often also includes mid-week parenting time for the parent with 3 weekends per month).
2. Sole Physical Custody of a Child in California
An example of language found in a court order or stipulation (agreement) for sole physical custody is:
FATHER/MOTHER shall have SOLE PHYSICAL CUSTODY of the child.
1. VISITATION SCHEDULE
A. MOTHER’S VISITATION:
1) EXAMPLE: MOTHER shall have visitation with the child on alternating Saturdays from 10 AM until 6 PM, commencing December 19, 2020.
B. FATHER shall have the minor children at all other times not specifically allocated to MOTHER herein.
When one parent has sole physical custody of a child, the child will live with them full time and have visits, potentially supervised visits, with the other parent, unless the court finds that visits wouldn’t be in the child’s best interest.
Who Has Custody of a Child if There is No Court Order?
If there is no child custody order in place, both parents have an equal right to custody of the child and either parent may lawfully take physical possession of the child at any time. Oftentimes, unreasonably withholding a child from the other parent is the event which prompts the parent from whom the child has been withheld to seek judicial intervention. Taking the child away without the other parent’s consent can be held against a parent in court if that action was not reasonable.
Reasons for Sole Custody of a Child in California
Most courts start with an assumption that children benefit from spending time with both parents. However, they know joint custody is not appropriate in every situation. Issues that may arise in a child custody case that may result in an award of sole legal and/or physical custody of a child to one parent include:
- Parental Incarceration. If a parent is imprisoned, they cannot provide a home or care for the child, nor can they legally make major decisions about the child’s health, education, and welfare.
- Substance Abuse. A parent who is actively abusing drugs or alcohol presents a danger to the child. The altered mental state that occurs as a result of substance abuse also may prohibit the parent from being able to make major decisions about the child’s health, education, and welfare.
- Mental Illness. A parent who is mentally unstable and exhibits irrational and unpredictable behavior may not be able to safely provide care for a child or to make major decisions about the child’s health, education, and welfare.
- Physical Abuse or Domestic Violence. If a parent has assaulted or sexually abused the other parent or any child, this presents an obvious danger to their child.
- Abandonment. In situations where a parent can’t or won’t take care of their child and has failed to maintain contact with them, the other parent may want to seek sole custody so the parent can’t resurface years later to exercise custody rights as a virtual stranger.
The likelihood of getting an order for sole custody vary greatly and depend on the particular circumstances of each case. If both parents agree on sole custody, the family court will typically approve the agreement. Likewise, if the other parent does not contest a request for sole custody, the court will likely award sole custody.
If the other parent decides to fight for custody and oppose the request, however, you may face a long battle. Be prepared to show why sole custody would be in the child’s best interest and provide proof of any allegations you make. If there is already an existing order for joint legal or physical custody, modifying the order will also require a showing of a change in circumstance.
Parents can always return to court to request more visitation time with the child down the road, however.
While you are trying to seek primary custody, it’s important to be cautious about how you represent the other parent. The last thing you should do is anything that makes it seem like you’re talking badly about them to your children or making up stories to try to win custody. A judge wants to see facts, not claims made because of hurt feelings or emotional distress.
Badmouthing another parent is a big mistake in court. If the family court believes that you’re the one causing problems and creating a divide between that parent and your children, then you could actually be hurting your case for custody as it may appear you are trying to alienate your child’s affection. That doesn’t mean you can’t present facts, but you should be cautious about how you do so.
Allow the evidence to speak for itself, and ask for the custody arrangements that you want.
No parents really want to go to trial to have a judge decide on custody because that takes away control. However, if you have found that it’s the only option and that you want to fight for sole or primary custody, you should work closely with your attorney to do so in a favorable manner. Click here for help finding the best family law attorney for your child custody case.
All of the issues discussed in this article are inherently emotional and complex. Whether you want to reach a child custody agreement or are fighting for custody of your child, having a family law attorney who understands the legal principles and day-to-day struggles facing parents can help you get the best result for your family. If you have questions for a child custody lawyer, contact us online today for a free consultation.
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