How is child custody determined in the state of California?

When California parents get divorced and cannot agree on their own, the court will decide whether to award joint or sole legal or physical custody.

When parents in California, and elsewhere, divorce, child custody is among the issues that they must work out. With few exceptions, it is believed beneficial for children to have a relationship with both of their parents. However, parents cannot always agree on a parenting plan together. In such situations, the decision typically falls to the courts.

Legal versus physical custody

There are two types of child custody in the state of California - legal and physical. Legal custody pertains to which parent is granted the right and responsibility to make important decisions regarding a child. This includes making choices about a child's education, health and welfare. Physical custody, on the other hand, addresses which parent a child resides with.

Joint versus sole custody

When making custody determinations, the judge may award joint or sole custody. Joint custody grants rights to both parents, while sole custody only bestows parental responsibilities on one parent or the other. For example, when parents are awarded joint legal custody, they share in the decision-making for their child. However, if sole legal custody is granted to a child's mother, then only she, and not the child's father, has the right to make choices for her child.

The same holds true for physical custody. When parents are awarded joint physical custody, the child lives with them both, sharing time between their households. If a parent is granted sole physical custody, then the child will live primarily with him or her. In these cases, the other parent may have regular visitation with the child. For both legal and physical custody, California state law presumes that joint custody is generally in the best interests of the child.

Deciding what is best for a child

Child custody is not automatically awarded to one parent or the other in the state of California. Rather, the court considers a number of factors when making child custody determinations. According to the Judicial Council of California, these include the following:

• The child's age

• The child's health

• The emotional ties between the child and each parent

• The ability of each parent to care for the child

• The child's ties to his or her home, school and community

• Any history of substance abuse or family violence

The state's Judicial Council points out that custody cannot be denied to a parent because he or she has a different religion, lifestyle or sexual orientation. Additionally, the court may not use a parent's physical disability as grounds to deny him or her custody.

Working with an attorney

Even as they are divorcing, most California parents want what is best for their children. Sometimes, however, the emotions that are at play at the end of a marriage may inhibit their ability to agree on what that is. Therefore, parents who are going through a divorce may benefit from seeking legal counsel. An attorney may help them understand their rights and negotiate child custody agreements, among other issues.