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Families & Divorce  >  Child Custody FAQ

Answers to Common Child Custody Questions

1. What is child custody? How is legal custody different from physical custody, visitation or time share?

2. How does the court determine between custody and visitation?

3. How does child custody relate to child support?

4. When do I need a lawyer to help with child custody issues?

1. What is child custody? How is legal custody different from physical custody, visitation, or timeshare?

Child custody, physical custody, visitation and timeshare have very different meanings. Child custody refers to a parent’s rights and responsibilities for making decisions regarding the health, education, and welfare of a child. Physical custody is whenever the child is actually spending time with a parent. Visitation is defined by a court order describing how and when a child will spend time with each parent. California recognizes this as a right of stepparents, grandparents, siblings, and former legal guardians to a limited extent. Timeshare is visitation calculated as a percentage of time a child spends with a parent over the course of a year; this is used for determining support and not in reference to visitation plans.

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Legal and Physical Child Custody

Parents who share legal custody both have the right to make decisions about aspects of their children’s lives, but they do not have to agree on every decision; either parent can make a decision alone. However, it is important for parents to work together and cooperate when making decisions for their children. Otherwise, you run the risk of ending up in court and creating conflict, which makes working together as parents even more difficult. And remember, children always suffer when there is tension between their parents, so it’s best to try to keep your relationship as conflict-free as possible.

Physical custody can be sole, joint or primary. Sole custody means the children live with one parent most of the time and usually visit the other parent. With joint custody, the children live with both parents. Joint physical custody does not mean that children must spend exactly half the time with each parent. Usually children spend a little more time with one parent than the other because it is too hard to split the time exactly in half. When one parent has a child more than half of the time, that parent is sometimes called the primary custodial parent; the other parent having visitation.

Sometimes a judge gives parents joint legal custody, but not joint physical custody. This means that both parents share the responsibility for making important decisions in the children’s lives, but the children live with one parent most of the time. The parent who does not have physical custody usually has visitation with the children, but still shares in decision making.

Sometimes the terms custodial parent and non-custodial parent are used in court or during mediation. The custodial parent is the parent that currently has visitation with the child; the child is currently visiting with that parent. The non-custodial parent is the parent who does not have the child in his or her custody at that particular time. For example, a father that has his children over the weekend is the custodial parent during that weekend regardless of whether the mother has primary custody of the children. Father will be the noncustodial parent when the child returns to mom and is in her custody.

In California, either parent can have custody of the children, or the parents can share custody. The judge makes the final decision about custody and visitation, but usually will approve the arrangement that both parents agree on or is recommended by a child custody counselor/mediator. If the parents cannot agree, the judge will make a decision at a court hearing.

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Visitation is the schedule agreed upon by the parents, or imposed by the court, which defines the parents’ time with their children. This is usually referred to as a parenting plan.

A parent who has the children less than half of the time has visitation with the children. Generally, it helps the parents and children to have detailed visitation plans (or parenting plans) to prevent conflicts and confusion.

Supervised visitation is used when the children’s safety and well being require that visits with the non-custodial parent be supervised by you, another adult, or a professional agency (such as in cases involving domestic violence). Supervised visitation is sometimes used in cases where a child and parent need time to become more familiar with each other. For example, when a parent has not seen a child in a long time, the court may order supervised visits which gradually lengthen in duration to facilitate reintroduction of a parent into the child’s life. (Often referred to as a reunification plan).

The court can order no visitation in extreme circumstances, such as physical, sexual or substance abuse towards, or in the presence of the child. This option is used when visiting with the parent, even with supervision, would be physically or emotionally harmful to the children. In these cases, it is not in the best interest of the children for the parent to have any contact with them.

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2. How does the court determine between custody and visitation?

Visitation is the schedule agreed upon by the parents, or imposed by the court, which defines the parents’ time with their children. This is usually referred to as a parenting plan.

The judge will usually not make a decision about custody and visitation until after the parents have met with a mediator (whether a Family Court Services mediator or a private mediator). The law states that judges must give custody according to what is in the “best interest of the child.” To decide what is best for a child, the court will consider:

  • The age of the child
  • The health of the child
  • The emotional ties between the parents and the child
  • The ability of the parents to care for the child
  • Any history of family violence or substance abuse
  • The child’s ties to school, home, and his or her community

Contrary to what you may have heard, courts do not automatically give custody to the mother or the father, no matter what the age or sex of your children. Courts cannot deny your right to custody or visitation just because you were never married to the other parent, or because you or the other parent has a physical disability or a different lifestyle, religious belief, or sexual orientation. The only criteria the court uses to determine custody arrangements “the best interest of the child.”

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3. How does child custody relate to child support?

In addition to custody orders, the judge will probably make child support orders. Keep in mind that a child support order is separate from child custody and visitation, so you cannot refuse to let the other parent see the children just because he or she is not making the child support payments that the court ordered. And you cannot refuse to pay child support just because the other parent is not letting you see your children. The proper way to address support issues (besides working it out on your own) is to bring the matter before the court. However, child support and custody are related because the amount of time each parent spends with the children will affect the amount of child support.

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4. When do I need a lawyer to help with child custody issues?

Ideally parents should be able to work together to come to a mutually agreeable custody arrangement. In such cases, parents can easily fill out the correct legal documents reflecting their preferred custody structure and file it with the court. However, there are some circumstances where attorney representation is necessary and recommended, including:

  • Domestic Violence
  • Sexual Abuse
  • Neglect
  • Substance Abuse
  • Move-Away Cases

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Domestic Violence

Domestic violence is defined as a pattern of abusive behaviors by one partner against another in an intimate relationship such as marriage, dating, family, or cohabitation.

Domestic violence laws define abuse as:

  • Physically hurting or trying to hurt someone, intentionally or recklessly
  • Sexual assault
  • Making someone reasonably afraid that he/she or someone else are about to be seriously hurt (like threats or promises to harm someone)
  • Behavior such as harassing, stalking, threatening, or hitting; disturbing the peace; or destroying personal property

Physical abuse is not just hitting. Abuse can be kicking, shoving, pushing, pulling hair, throwing things, scaring or following, or keeping you from freely coming and going. It can even include physical abuse of the family pets.

Keep in mind that abuse in domestic violence does not have to be physical. Abuse can be verbal (spoken), emotional, or psychological. You do not have to be physically hit to be abused. Often, abuse takes many forms, and abusers use a combination of tactics to control and have power over the person being abused.

There are laws that deal with custody and visitation rights of parents in cases of domestic violence. First, the judge must decide if there is domestic violence, and if there is, the judge MUST follow special rules to decide custody of the children.

The judge will treat your case as a domestic violence case if, in the last five years:

  • A parent was convicted of domestic violence against the other parent OR
  • Any court has decided that one parent committed domestic violence against the other parent or the children

Usually, when a judge decides that your case is a domestic violence case, the judge CANNOT give custody (joint or sole custody) to the parent who committed domestic violence because it would not be in the children’s best interests to do so. But that parent can get parenting time with the children (visitation rights).

A judge CAN give joint or sole custody to the parent who committed domestic violence if the parent who was abusive:

  • Proves to the court that giving joint or sole custody of the children to him or her is in the best interest of the children
  • Has successfully completed a 52-week batterer intervention program
  • Has successfully completed substance abuse counseling if the court ordered it
  • Has successfully completed a parenting class if the court ordered it
  • Is on probation or parole and has complied with the terms of probation or parole
  • Has a restraining order against him or her and has followed the orders
  • Has NOT committed any further domestic violence

It is very important that you speak with an attorney when domestic violence is involved. Whether you are the victim or the person accused of abuse, there are important rights at stake and you need sound legal advice. Domestic violence has a substantial impact on child custody determinations.

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Sexual Abuse

Allegations of child sexual abuse are taken very seriously by the courts. When allegations of child sexual abuse are made during a child custody proceeding, the court may take any reasonable, temporary steps it deems appropriate to protect the child’s safety until an investigation can be completed. Whether you are the parent who suspects sexual abuse has taken place, or the parent accused of perpetrating sexual abuse, your parental rights can be severely affected by sexual abuse allegations.

The court can limit a parent’s custody or visitation if it finds substantial evidence that a parent, with the intent to interfere with the other parent’s lawful contact with the child, made a report of child sexual abuse, during a child custody proceeding or at any other time, that he or she knew was false at the time it was made. Therefore, when making allegations about sexual abuse of child, it is very important to gather evidence and properly present it to the court to avoid appearing as if you are making a false accusation. An attorney can assist you with this process.

If you are a parent accused of sexual abuse of a child, it is highly recommended that you hire an attorney to represent you in child custody proceedings. Your parental rights can be adversely affected if the court finds that abuse actually took place. If you did abuse your child, you need help, and an attorney can advise you of that fact and assist you in finding the proper mental health professional to treat you. If, however, the accusations are false, you will need help gathering evidence to prove that to the court. An attorney is invaluable in that respect.

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General neglect occurs when the person that has custody of a child fails to provide adequate food, clothing, shelter, medical care, or supervision. No injury to the child is required in cases of general neglect.

Severe neglect occurs when any person having custody of a child willfully causes or permits the child to be placed in a situation where his or her person or health is endangered, including the intentional failure to provide adequate food, clothing, shelter, or medical care. Severe malnutrition also qualifies as severe neglect.

Cases involving child abuse and neglect are heard in the juvenile dependency court. The juvenile court can make orders in dependency cases. For example, these orders can:

  • Take children from their homes
  • Send children to live with relatives or in foster care or group homes
  • Cancel a parent’s rights
  • Create new parental rights
  • Work with other agencies to get the services the child needs

If your child is taken out of your home because of neglect, you have the right to have a lawyer represent you in court. If you need time to hire one, you can postpone the first court hearing for one day so you can get a lawyer. If you do not have enough money to hire a lawyer, you can ask the court to assign a lawyer to your case. (You may have to pay part or all of the costs for your lawyer if you earn enough money.)

In cases involving neglect, serious issues of parent rights are at stake. Therefore, whether you hire an attorney on your own or ask the court to appoint an attorney to your case, it is important that you have an attorney in court to represent you.

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Substance Abuse

In making a custody determination, the court must take into account the habitual (repeated) or continual illegal use of controlled substances.

If you suspect that your child’s parent is abusing controlled substances or using illegal substances, it is important that you take immediate action because drug or alcohol abuse interferes with a person’s ability to properly care for a child. You should hire an attorney to help you put safeguards in place to protect your children’s safety (such as supervised visitation or random alcohol testing).

If you have been accused of have a substance abuse problem, have a substance abuse problem, or have had a substance abuse problem in the past, it is important that you hire an attorney to help protect your parental rights. An attorney can defend you against false claims of substance abuse, help you find treatment if you need it and ensure that any actions you take to get yourself healthy are fully considered by the court when making a custody determination.

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“Move-Away” Cases

This type of case is just what it sounds like — one parent wants to move away with the children.

The law on these types of cases is very complicated and changing. You should talk to a lawyer if you want to move away with your children or if you are worried that the other parent will move away with your children.

Generally, a parent who has a permanent order for sole physical custody (also called primary physical custody) can move away with the children unless the other parent can show that the move would harm the children. But it is not always clear whether a custody order is permanent or temporary, so what the law requires may be different in your case. Therefore, you need to talk to a lawyer to determine how the law applies.

If the parents have joint physical custody of the children and one parent does not want the child to move, the parent that wants to move with the children must show the court that the move is in the best interest of the children. If you want to move away with your children, you should contact an attorney to discuss how best to present your case to the court as to why the move would be in the children’s best interest.

Even if you and the other parent are able to reach an agreement regarding a move away with the children, talk to a lawyer before you make a parenting plan to make sure your plan protects your rights as much as possible.

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