The California Family Code empowers the court, during a marital court action or at anytime thereafter, to make an order for the custody of a child during minority "that seems necessary or proper." [Ca Fam § 3022] However, in exercising their discretion under this provision, courts must be guided by several basic statutory principles.
Safety & Welfare: The court's "primary concern"is to assure the child's health, safety and welfare. This codified policy is a companion to the Legislature's express finding and declaration that "the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child." [Ca Fam § 3020(a) (emphasis added); see also Ca Fam § 3044]
Frequent and continuing contact" with both parents and shared parenting:
Further, an appropriate custody/visitation award must take into account the codified policy "to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy" . . . except where the contact would not be in the child's best interest pursuant to [Ca Fam § 3011] [Ca Fam§ 3020(b) (emphasis added)]
Types Of Child Custody Arrangements
Sole Custody Orders
Exclusive custody ("legal" and "physical") to one parent: An exclusive custody order gives one parent primary physical control of the child, with the right to make decisions regarding the child's residence, health, education and welfare. The non-custodial parent has secondary visitation rights as ordered by the court. [Ca Fam § 3006 & § 3007]
Sole Physical Custody: A parent may be granted exclusive physical custody without exclusive legal custody. This means the child resides with and is supervised by one parent, subject to the other parent's visitation rights; but the custodial parent does not have sole decision-making power regarding other matters affecting the child. [Ca Fam § 3007]
Sole Legal Custody: A parent may be awarded the exclusive right and responsibility to make decisions relating to the child's health, education and welfare; but unless exclusive physical custody is also granted, that parent does not have sole control over the child's residence and supervision. [Ca Fam § 3006]
Joint Custody Orders
Pure Joint Custody: Under a "pure" joint custody plan, neither parent has sole physical or legal custody; both have authority to control and supervise the child, and the child's physical presence is shared. [Ca Fam § 3002]
Joint Legal Custody: Joint legal custody means that both parents share the right and responsibility to make decisions regarding the child's health, education and welfare. [Ca Fam § 3003]
Joint Physical Custody: A joint physical custody award means each parent has "significant periods" of physical custody. Physical custody must be shared in such a way as to assure the child "frequent and continuing contact with both parents," subject to Ca Fam §§ 3011 and 3020; but that does not mean the child's time must be equally divided with each parent (i.e., one parent can still be the "primary caretaker"). [Ca Fam § 3004]
Divided Or "Split" Custody: These are terms of art not defined by the Code. In it's common sense usage, "divided" custody generally means each parent is custodian of the same child for different finite periods of time, with cross rights of visitation. A "split" custody arrangement refers to varying parenting plans for several children, where each parent has custody of at least one child of the marriage at all times (e.g., father awarded custody of son, mother awarded custody of daughter) and both have visitation rights as to the noncustodial child.
Subject to strict statutory standards (Ca Fam § 3041), custody may be granted to a nonparent (who will have exclusive responsibility for the child's care and control); the parents, at most, will have reasonable rights to visitation.
To file for divorce, one spouse must have lived in California for the last six months, and the county where the action is filed for the last three months. Spouses who have lived in California for at least six months, but in different counties for at least three months can file in either county. These California residency requirements must be met in order for the court to have jurisdiction of the case.
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"A Plain English Guide to Protecting Your Children"
Mary L. Boland, Attorney at Law
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