Child Custody

Child Custody

The right of custody has two components; legal custody and physical custody. Legal custody refers to the right and the responsibility to make the decisions relating to the health, education, and welfare of the child. Physical custody refers to with whom the child actually resides

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A Parent’s Guide to Child Custody Matters

“Joint custody” means both joint legal and joint physical custody. Legal custody is either sole or joint depending on whether one or both parents have the right to make the decisions relating to the health, education, and welfare of the child. Joint physical custody means that each parent has significant periods of physical custody, shared in such a way so as to assure the child of frequent and continuing contact with both parents. Sole physical custody means that the child resides with and is under the supervision of one parent, subject to the power of the court to order visitation.

Child Custody Law in California

Family Code Section 3040(b) grants the court the widest discretion to choose a parenting plan that is in the best interests of the child. There is no abuse of discretion if there is substantial evidence to support the findings of the trial court. Substantial evidence has been defined as evidence that is reasonable in nature, credible, and of solid value. An abuse of discretion exists, however, if the court rules on the basis of preexisting bias, rather than on the evidence adduced. To guide the courts in exercising discretion, the Legislature has set forth in Family Code Section 3011 certain specific issues that must be considered by the court. These include (1) the health, safety, and welfare of the child, (2) any history of domestic violence or substance abuse and (3) the nature and amount of contact with both parents. Further statutory considerations are found in Family Code Sections 3040(a)(1) and 3042.

It is the public policy of California, as declared by the Legislature, to assure children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, and to encourage parents to share the rights and responsibilities of child-rearing, unless contact would not be in the best interests of the child. Therefore, in making an order for custody to either parent, the court must consider which parent is more likely to allow the children frequent and continuing contact with the noncustodial parent.

In making an order for custody to either parent, the court may not prefer a parent as custodian because of that parent’s sex. Thus, prior statutory preferences for the mother as the custodian of very young children (the “tender years” doctrine) and for the father as custodian of children of an age to require education and preparation for business or labor have been discarded.

Considering the Child’s Preference

If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court must consider and give due weight to his or her wishes in making a custody order. However, although the court must consider the child’s preference, it is not binding. The preference is evidence to be weighed by the court with all other evidence concerning the best interests of the child. The child’s preference may be rejected if the court finds that it is not supported by mature reasoning.

Joint custody may be ordered at the discretion of the court if it is in the best interests of the child. The determining factor as to whether joint physical custody is in the child’s best interests is the nature of the relationship between the parents with regard to their parental responsibilities. There is neither a statutory preference nor a statutory presumption for or against any particular custody arrangement, including joint legal custody, joint physical custody, or sole custody. Instead, the court has the widest discretion to choose a parenting plan that is in the best interests of the child. However, if the parents have agreed to joint custody, there is a presumption that affects the burden of proof that joint custody is in the best interests of the child.


A court may grant joint legal custody without granting joint physical custody. In making an order of joint legal custody, the court must specify any circumstances under which the consent of both parents must be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody may not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court. A specification of the circumstances under which both parents’ consent must be obtained to exercise legal control of a child need only be made if the court’s order contemplates that there will, in fact, be circumstances requiring joint consent. If the court does not require joint consent for any determination, a motion is required.

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