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Legal Custody and Physical Custody
California offers two types of custody – legal custody and physical custody. Legal custody refers to a parent’s legal right to make decisions for the child (e.g., healthcare, education, religion, extracurriculars, travel, welfare), and physical custody refers to which parent the child will reside with.
The court may order joint, or shared, custody, or they can order sole custody held only by one parent. Note that joint physical custody does not mean that the child must spend exactly half the time with each parent. It’s more often that the child spends a little more time with one parent (“primary custodial parent”) than the other (“noncustodial parent”). A parent who does not have physical custody will usually be granted visitation with the child.
Types of Visitation (Time-Share)
Visitation addresses how the parents will share time with the child. The noncustodial parent will usually be granted visitation with the child if such an arrangement is in the child’s best interests (below). There are several types of visitation orders based on the circumstances:
- Visitation according to a schedule: This involves a detailed visitation plan to prevent conflict and confusion. The parents and courts will come up with a visitation schedule detailing the dates and times that the child will be with each parent. The schedule can include holidays, special occasions (birthdays, Mother’s Day, Father’s Day, etc.), and vacations.
- Reasonable visitation: This does not necessarily detail when the child will be with each parent but will instead be open-ended. This plan works only if parents get along well and can be flexible and communicate well with one another.
- Supervised visitation: This is used when the child’s safety and well-being require that visits with the noncustodial parent be supervised by another adult or a professional agency. Supervised visitation may be used in cases where a child and a parent need time to become more familiar with each other, like if a parent has not seen the child in a long time.
- No visitation: This is used when visiting with the parent, even under supervision, would be physically or emotionally harmful to the child, such as if the parent has a history of domestic abuse.
The Best Interests of the Child
When deciding on the custody and visitation arrangement, the court will act according to the best interests of the child.
This includes factors such as:
- the age of the child;
- the health of the child;
- the emotional ties between each parent and the child;
- the ability of the parents to care for the child;
- any history of family violence or substance abuse; and
- the child’s ties to school, home, and their community.
If the child is at least 14 years old and mature enough to express a sound preference, the court may also consider their wishes (weighed with the above factors).
A custodial parent has the right to change residences or move neighborhoods with a child as long as the move will not interfere with the child's best interests. Under California law, the moving parent must provide written notice of any plan to move away with the child for more than 30 days. The notice should be sent at least 45 days before the proposed move to allow both parents to work out a new custody or visitation agreement. The nonmoving parent has the right to file an objection to the proposed relocation and ask a court to modify custody as a result. Evidently, move-away cases can grow quite lengthy and complex if a parent objects.
Nonetheless, the court will look at several factors to determine if a change in custody due to relocation is appropriate, including:
- the child's need for continuity and stability;
- the distance of the proposed move;
- any harm that would result from a change in custody;
- the child's relationship with both parents;
- the parents' relationship with each other, including the ability to communicate;
- any harm to the child's relationship with the nonmoving parent;
- the custodial parent's reasons for moving;
- the child's emotional, physical, and educational needs and how they will be met by the move;
- the child's extended family relationships in their present community and new location; and
- any other factor the court deems relevant to the child's interests.
For legal support in any stage of your child custody dispute, whether you are in the initial stages of your custody battle, intend to move away with your child, or seek to modify an existing custody order, reach out to the Law Offices of Kimberly Prendergast. We are sensitive to your needs as a parent and will tailor a legal strategy that is unique to your goals. Let’s help you preserve your parent-child relationship today.
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