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  • Writer's pictureJames Chau

Two Types of Child Custody

If you are going through a divorce and have minor children, one of the most critical and complex issues to work through is child custody. There are two forms of custody: legal and physical.

Legal custody is the right to make major decisions about a child's well-being. These decisions are related to the child's health, education, religion, and welfare. A judge can great sole legal custody to one parent or award joint legal custody to both parents.

Sole custody means that one parent can make all necessary decisions without input from the other parent. Legal custody is not related to physical custody; having sole legal custody does not necessarily mean that the parent will also have sole physical custody.

Joint custody means that both parents have equal say and input into the major decisions to be made for the children, and both parents must work together for the children's best interests. Courts will always look out for the best interests of the children. Ideally, the children will have ongoing healthy relationships with both parents. Granting joint legal custody is the preferred decision by the court unless doing so would not be in the child's best interest. Some situations where a court would not grant joint legal custody include:

  • One parent is deemed unfit.

  • The parent's relationship is so contentious they are incapable of working together.

  • One parent, for a particular reason, is incapable of making decisions.

  • It is not in the child's best interest for both parents to be involved in the decision-making process.

Physical custody refers to where the children will be living. As with legal custody, sole physical custody can be granted to a single parent, or both parents can share joint physical custody, and in drastic situations, neither parent can have custody of the child. As with legal custody, joint physical custody is the preferred situation. With joint physical custody, the children spend significant time with each parent. While this would ideally mean the child split their time in a somewhat equal manner between parents. For example, if parents do not live close to each other, living with a parent who lives far from the child's school and extracurricular activities can be disruptive for the children. In another example, a parent's work schedule might not be conducive to having a child live with them during the school week.

To maintain some form of equilibrium, agreements might be worked out for one parent to have additional time on weekends or times when school is not in session.

Having joint physical custody does not mean that one parent will not be required to pay child support to the other parent. Child support is a complex calculation based upon the income of the parties, their tax filing status, and the percentage of timeshare each parent has with the child. It is designed to equalize the income between the parents across households so the child can maintain the same standard of living across two houses.

It is important to note that the decision of the court regarding children is never unchangeable. While legally binding, situations can change. People get new jobs, become involved in new relationships, or lose a job, and have to relocate to find employment. It is possible to have court orders modified when major life changes occur. Under California law, either parent can request a modification to the terms of custody or visitation (parenting time). If both parents agree to the modification, they can jointly submit their request to the courts for approval. However, if the modification is contested, the proper paperwork must be filed, and the courts would review the request going through the proper procedures before making a decision.

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