Child Custody

How can I be a good parent during the separation?

  • Children benefit when the parents:
  • Avoid conflict and avoid any physical violence or emotional abuse
  • Handle rules and discipline in similar ways
  • Support appropriate and safe contact with grandparents and other extended family so the children do not experience a sense of loss.
  • Are flexible so the child can take advantage of opportunities to participate in special family celebrations or events.
  • Give as much advance notice as possible to the other parent about special occasions.
  • Provide an itinerary of travel dates, destination and places where the child or parent can be reached when on vacation.
  • Establish a workable "business like" method of communication
  • Plan their vacations around the child's regularly scheduled activities

Children are harmed when parents:

  • Use physical violence
  • Make their child choose between each parent
  • Question their child about the other parent's activities or relationships
  • Make promises they do not keep
  • Argue with or put down the other parent in the child's presence or range of hearing
  • Discuss their personal problems with the child or in the child's range of hearing
  • Use the child as a messenger, spy or mediator
  • Withhold access because child support has not been paid

What are the types of custody orders?

Legal custody can be:

  • Joint, where both parents share the right and responsibility to make important decisions about the health, education and welfare of the children.
  • Sole, where only one parent has the responsibility to make the important decisions about the health, education and welfare of the children

Some examples of the decisions or choices parents with legal custody make are:

  • school or childcare
  • religious activities or institutions
  • psychiatric, psychological, or other mental health counseling or therapy needs
  • doctor, dentist, orthodontist, or other health professional (except in emergency situations)
  • sports, summer camp, vacation, or extracurricular activities
  • travel
  • where to live

Physical custody can be:

Joint, which means that the children live with both parents. Sole or primary, which means the children live with one parent most of the time and usually visit the other parent.

Sometimes, a judge gives parents joint legal custody, but not joint physical custody. This means both parents have share the responsibility in 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.

What does the law consider when deciding custody and visitation?

The law says that judges must give custody according to what is in the best interest of the child. Judges look at the children's health, safety and wellbeing to decide whether to give custody to one or both parents. Courts also consider any history of abuse by one or both of the parents.

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.

In a few cases, if giving custody to either parent would harm the children, courts give custody to someone other than the parents because it is in the best interest of the children. Usually, this is called "guardianship," where someone who is not the parent asks for custody of the children because the parents cannot care for the children.

What is "the best interest of the child"?

It is what judges must consider to make their decisions about custody and visitation. 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,
  • history of family violence and/or substance abuse, and
  • the child's ties to school, home, and his or her community

Content supplied by the California Courts Self Help Center