Custody and Visitation

In California, the Court’s primary concern in making a legal and/or physical custody order is the child’s health, safety, and welfare, which includes freedom from child abuse and domestic violence in the child’s home.

With that in mind, the Court can award joint or sole legal and physical custody.

WHAT IS LEGAL CUSTODY?

Legal Custody refers to parents’ ability to make important decisions regarding their child including healthcare, education, religious activities, travel, child care and residence. Parents can have

  • (1) Joint legal custody where both parents are authorized to make decisions or
  • (2) Sole legal custody can be awarded to one parent.

WHAT IS PHYSICAL CUSTODY?

Physical Custody refers to the amount of time each parent will spend with the child. This is a major source of contention between parents. Both parents want to spend as much time with their child but must come to realize that the other parent also has equal right to spend time with the child.

Parents can share physical custody, which is called "joint physical custody". Joint physical custody means each child will have frequent and continuing contact with both parents. The parents actual time-share will not be 50% as it would be difficult to allocate exact days and hours to each parent.

One parent can be awarded "primary physical custody" which means the child will reside with and under the supervision of one parent. Primary physical custody is usually subject to visitation order. In awarding primary physical custody, the Court must consider, among other factors, which parent will allow the child to have frequent and continuing contact with the noncustodial parent.

VISITATION/ PARENTING TIME

Parents can agree to reasonable visitation schedule that is in the best interest of the child, and fits their respective schedules. This often works when the parents get along and communicate well with one another.

In the event that parents cannot come to an agreement, either parent may request the court to determine parenting time. Most Courts require parents to go sit with a custody counselor/mediator prior to going before a judge or commissioner to plead each side of their case. With the help of the counselor/mediator the parents are encouraged to come up with detailed visitation/parenting plan that includes schedules for holidays, vacations, and other special occasions. If both parents agree with the visitation/parent plan, it becomes part of the Court’s order.

Supervised visitation:
In some instances, when the safety and welfare of the child may be at risk, supervised visitation may be requested. The visits with the other parent can be supervised by a parent, an adult, or professional agency.

Supervised visitation is sometimes used to allow the child and parent to become familiar. This often occurs when the child is young and has not had contact with the parent or the parent has not seen the child for a long time.

No visitation:
If the safety and welfare of the child is at risk and supervised visitation will not protect the child, the Court may order no visitation to one parent. This occurs often in situations where the parent has physically or emotionally abused the child or endangered the child in some manner.

DOMESTIC VIOLENCE AND CUSTODY

If the court determines that the parent seeking custody of a child has perpetrated an act of domestic violence against the other parent or against the child or the child’s siblings within the previous 5 years, the Court will presume that awarding custody to the perpetrator is not in the best interest of the child. The perpetrator may overcome the presumption by satisfying factors set forth in Family Code section 3044 (b).

PHYSICAL IMPAIRMENT AND CUSTODY

A parent’s physical handicap is impermissible for the purposes of determining parent’s unfitness as a part or of probable detriment to the child. [MARRIAGE OF CARNEY (1979) 24 Cal App 3d 725].