We recently wrote a blog about the distinctions between legal custody and physical custody of children in a divorce proceeding. In order to truly understand how custody issues work in a divorce proceeding, however, it is also important to understand the differences between joint and sole custody, as each of these designations carries vastly different legal rights and obligations.
At the outset, it is important to note that in California, as well as in most other states, the courts make the presumption that it is in the best interest of the children to have meaningful contact with both parents. While the facts of a case may suggest the contrary (e.g., when abuse is involved), in most situations the courts will try to foster healthy relationships between the children and both of the parents. That foundation leads us to the concept of joint custody.
Joint legal custody and joint physical custody are different. Joint legal custody is an arrangement where both parents share decision making responsibilities relating to the health, education, and welfare of the children. Joint physical custody is an arrangement where both parents have significant periods of physical custody. There is a presumption in California that joint custody is in the best interests of the children (California Family Code §3080).
Joint physical custody should not be confused with 50-50 physical custody. There are custody arrangements where the children do spend roughly equal time at each parent’s home, but there are also arrangements where parents have joint physical custody, yet the children spend more time at one of the parent’s houses. The key is that each parent has “significant periods of physical custody.” (Family Code section 3004) Both of these arrangements are joint physical custody.
Sole legal custody is when only one of the parents has the legal right and obligation to make decisions relating to the health, education, and welfare for the children. (Family Code section 3006) A courts will not award sole legal custody unless the court concludes that one of the parents should not participate in those decisions for some reason; joint legal custody is the norm even when one of the parties has sole physical custody. Sole physical custody is when a child only resides with and is only under the supervision of one parent, subject to visitation rights. (Family Code section 3007)
Custody decisions are among the most difficult in any court proceedings. You should be very careful not to give away any of your parental rights unknowingly. If you are currently going through a divorce, please contact The Wilson Law Firm, A Professional Corporation for expert legal advice on all custodial issues.