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How to Determine Child Custody

If you are in the midst of a divorce or paternity action with minor children involved, then custody will likely be an important issue in your case.

There are two types of child custody in California: physical custody and legal custody. Understanding the different types of custody is crucial when going through a divorce.

Legal Custody vs. Physical Custody

Legal custody is the right of a parent to make decisions regarding the health, education, and welfare of the child. This means making decisions about the child’s physician, where the child will attend school, what extra-curricular activities that child will participate in, etc. Physical custody is where the child will reside.

Sole Custody vs. Joint Custody

The parents of a minor child(ren) can either have joint or sole physical and legal custody. Pursuant to Family Code section 3003, if a parent has joint legal custody, then he or she shares the responsibility with the other parent to make decisions for the minor child. Sole legal custody means these decisions will only be made by one parent.

Pursuant to Family Code section 3004, if a parent has joint physical custody, he or she shares significant time with the other parent. In contrast, sole physical custody means that the “child will reside with, and under the supervision of, one parent, subject to the court’s power to order visitation.” Family Code § 3007.

How the Court Decides Custody in California

In order for the court to make custody orders on whether a parent will have joint or sole custody, it must consider “the best interest of the child" and ensure that any custody orders comply with this standard. The custody order must also accomplish the public policy of encouraging frequent and continuing contact with each parent.

Under the Family Code, the best interests of a child refer to the child’s health, safety, and welfare. These factors are arbitrary, and consideration of the same depends on the child’s individual circumstances. Some secondary factors used to determine whether a proposed custody order is in the best interest of a child include whether domestic violence is present in the home, a child’s relationship with the parents, siblings, and other family members, whether either parent uses controlled substances or alcohol, etc.

Due to the difficulty of assessing a child’s best interests, you may require the assistance of a skilled family law attorney. Bremer Whyte Brown & O'Meara is here to help you with your custody case. Please contact us online or call our office today!