What is the difference between legal and physical custody?

There are two kinds of child custody: legal and physical. Legal custody refers to the decision-making authority for the important decisions in the child’s life, such as education, religion, health, and welfare. Joint legal custody means that both parents shall share the right and the responsibility to make the decisions relating to the health, education and welfare of the minor children. Sole Legal custody means that only one parent has the authority to make all important decisions about the children.

Physical custody relates to how much time each parent spends with the minor child. Joint physical custody means that each of the parents shall have significant periods of physical custody where the minor children live on a regular basis. Sole physical custody means that only one parent spends significant periods of time with the minor children. The other parent in almost all cases will have visitation rights, which may range from a few hours a week to frequent nightly sleepovers.

What is the difference between child custody and visitation?

The difference between child physical custody and visitation is the amount of time each parent spends with the child. While there is no bright-line rule as to what percentage qualifies as “custody” versus “visitation”, if the custodial time is somewhat split equally between the parents, then they share joint physical custody. If the child, however, spends one weekday and every other weekend with one parent, then that parent has visitation rights.

How is child custody decided?

Child custody is decided based on the “best interest of the child” standard. Thus, the focal point in any child custody dispute is the health, safety and welfare of the child. For all couples with minor children going through a divorce, it is important to read Family Code Section 3020, or have an experienced family law attorney on his/her side.

Additionally, it is the public policy of the State of California that children have frequent and continuous contact with both of their parents. That is why every family law judge begins making a determination on child custody with the premise that each parent should have the child fifty percent of the time. Starting with this premise, however, the balance can shift depending on issues related to continuity and stability, the child’s wishes (if the judge determines the child is old enough), alcohol and drug abuse, domestic violence, child abuse, and other such factors. No preference is given based on gender.

At Felix & Killen, we always encourage parents to work collaboratively towards an agreeable child custody schedule, as otherwise a judge will make the decision instead of the parents. There are cases, however, where custody must be litigated to protect the best interest of the child. If you believe that your will have a contested child custody issue, it is even more imperative that you see an experienced family law attorney as soon as possible.