What is Child Custody?

Divorcing or separating parents need to figure out who will make decisions about their children’s care, where their children will live, and when each parent will spend time with the children.  The best solution for the children is for the parents to agree on a “parenting plan”. In most cases, a judge will approve a custody plan agreed upon by both parties.

In California, there are two types of custody: “legal” and “physical”

“Legal custody” is the right to make major decisions concerning the child’s health, safety, education, and welfare. One parent can make these decisions alone, which is known as sole legal custody, or both parents may retain the right to make these decisions, known as joint legal custody.

“Physical custody” refers to where a child lives after a divorce or separation. Sole physical custody means the child lives with one parent and may visit the other parent. Joint physical custody means the child resides with both parents.

When one parent has sole physical custody, the other parent– sometimes referred to as the “non-custodial parent”– still has the right to “visitation” (the right to spend time with the children), except in extreme cases where it would not be in the children’s best interest. For example, in some cases of extreme abuse and/or neglect, a court may deny any and all visitation time with the children.

How is Child Custody Determined?

The law regarding child custody and visitation in California is found at California Family Code sections 3000-3204. If you and the other parent are unable to agree on custody, the judge will make the decisions for you. Before any hearing or trial regarding custody, both parents are required to meet with a court mediator. The mediator will try to help you agree on a custody and parenting plan.

In deciding initial custody issues the judge will determine the parenting plan that is in the “best interest of the children”. The judge will consider the following “best interest” factors:

  • the age of the children
  • the health, safety, and welfare of the children
  • whether either parent has a history of domestic violence
  • the nature and amount of contact each parent has with the children
  • whether either parent has a habit of drug and/or alcohol use
  • the children’s wishes, if the children are old/mature enough to make an intelligent preference.

How do I obtain a court order for custody of my kids?

To obtain a court order for child custody you need to have an active case with the court. If you are married to the other parent, you may file a Petition for Dissolution, Legal Separation or Nullity depending on the facts of the case. If you are not married to the other parent, you may file a Petition to Establish Parental Relationship. To obtain temporary child custody orders while the divorce or paternity case is pending you must request a court hearing by filing and serving the FL-300 Request for Order and other court forms as required. Other options to obtain child custody orders include a Petition for Custody and Support of Minor Children or, if domestic violence is present, you may seek a Domestic Violence Restraining Order with child custody orders. Depending on the specific facts and circumstances of your situation, there may be additional legal options available to you.

How can a Child Custody order be changed?

After an initial child custody order is made by the court, the order may be changed if a proper request for modification is filed by either parent. In most instances, a “change in circumstance” must be shown in order for the court to change the custody orders. The court has jurisdiction (legal power) over the issues of child custody and visitation until the children are 18 years old. Here’s more information on changing a Child Custody Order.

Here’s more information on Child Custody.