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Child Custody
In order for a court to determine the child
custody issue in a contested dissolution of
marriage matter (or parentage action when
the parents were not married) the “best
interest test” is used. This means that the
court must determine under the facts and
circumstances of the particular case what
will be best for the health, safety, and
welfare of the minor children of the
parents. Thus, this is not based merely on
the desires of the parents. Although there
is case law to follow, policy directives,
and statutory factors that must be taken
into consideration, application of the best
interest tests is primarily within the
family law court’s broad discretion. This
is somewhat attenuated, however, by the
overarching policy in California that each
parent, even though the marriage or
relationship is ending, should have constant
and continuing contact with their minor
children. Nevertheless, in the majority of
cases this rarely results in parents having
a equal 50-50 shared custody arrangement.
Types of Custody
Sole Custody Orders
Exclusive Custody: A court may order
exclusive custody giving one parent primary
physical control of the child or children
and the right to make all decisions
regarding the child such has health,
residence, education, and welfare. The
other parent, however, may be allowed
visitation rights, as is ordered by the
court.
Sole Physical Custody: Where the child will
reside is determined by which parent has
physical custody. Sole physical custody
means that the child (or children) will live
with one parent. The parent that the child
lives with is called the custodial parent.
The parent that the child (or children)
visits with is called the non-custodial
parent. The court, however, may grant one
parent sole physical custody (or primary
custody) but also order joint legal custody
to both parents. This means that although
the child, or children live with one parent,
and are supervised by one parent (subject to
the visitation rights of the other parent),
the custodial parent does not have sole
decision making authority as to the health,
residence, education and welfare of such
children. Such legal custody and thus
decision making must be undertaken by the
parents jointly.
Sole legal Custody: A court may also grant
one parent’s request for sole legal
custody. Again, legal custody determines
which parent will make the decisions
regarding the child’s health, safety,
education, and welfare. Unless, however,
physical custody is also granted, that
parent will not have the right to make
decisions with respect to the child (or
children’s) residence. Sole legal custody
is sometime granted to one parent based on
their prior history of being more
responsible for making such determinations,
or on the basis of a child with special
needs, or health issues, where such a parent
has demonstrated more knowledge, or hands-on
ongoing involvement, with such issues.
Joint Custody Orders
“Pure” Joint Custody: With pure joint
custody, neither parent has sole legal or
physical custody. As such, each parent
shares equally in the responsibility of
rearing the child. Each parent thus has the
authority to control and supervise the child
(or children) and the child’s physical
custody is shared.
Joint Legal Custody: Under a joint legal
custody arraignment, both parents share in
the responsibility of making decisions
regarding the child’s health, welfare, and
education. Joint legal custody may be
granted by the court without having joint
physical custody. In such a case, although
the parents share in decision making
responsibilities, the child (or children)
resides with one parent only.
Joint Physical Custody: When there is a
joint physical custody award, each parent
has significant periods of physical
custody. Such orders are made in order to
ensure that the child has frequent, regular,
and continuing contact with both parents.
This does not denote, however, that the
minor child’s time is divided exactly
equally between the parents. One way to
accomplish such a arrangement, to have
alternating weeks where the child (or
children) spend one week with one parent and
the following week with the other parent.
As a matter of feasibility, this type of
custody arrangement works well when both
parents live in close proximity to each
other (e.g., no more than a half-hours
drive).
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