Child Custody 101: Legal Custody vs. Physical Custody
Child custody is a legal term for the relationship between parents and children. In California, there are two types of child custody: legal custody and physical custody. Read on to learn more about the two types of child custody.
Legal Custody
Legal custody refers to the right to make decisions about a child. Legal custody can be joint or sole.
Sole legal custody means that one parent has the right and the responsibility to make the decisions relating to the health, education and welfare of a child.
Joint legal custody means that both parents share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. Sharing this decision making power requires mutually consulting and consenting to decisions before either parent is authorized to take action.
Generally, the types of decisions that implicate joint legal custody are:
Enrollment or termination of attendance in any public or private school.
Participation in regularly occurring extra curricular activities.
Non emergency medical, dental and orthodontic treatment.
Participation in mental health counseling, therapy or treatment.
Change in area of child's residence.
Issuance of driver license.
Issuance of a passport.
Travel abroad.
If parents share joint legal custody, and cannot agree on an issue, either parent can request a court order. For example, if parents cannot decide on which school a child should attend, either parent can file a "Request for Order" asking that the court determine which school the child should attend. The court will review the evidence before it, and render a decision.
Sometimes, parents share joint legal custody but one parent has "tie breaking authority" over some or all issues in the event the parents cannot agree. Tie breaking authority can be ordered by the court, or achieved by agreement. On one hand, tie breaking authority can prevent parents from constantly running to court in contentious cases. On the other hand, tie breaking authority may seriously diminish the other parent's parental rights.
Physical Custody
"Physical custody" refers to who the child will live with. Physical custody can be joint or sole.
“Sole physical custody” means that a child resides with and is under the supervision of one parent, subject to the power of the court to order visitation to the "non-custodial" parent. Parents can agree on a visitation schedule, otherwise known as a parenting plan or parenting schedule, rather than leave it in the hands of the court.
“Joint physical custody” means that each of the parents has significant periods of physical custody. Joint physical custody is shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents. Joint physical custody does not necessarily mean that the parties share parenting time equally and it generally requires a parenting schedule, whether by agreement or court order.
Legal and Physical Custody
Legal and physical custody can be sole, joint, or a mix of sole and joint. For example, we've had cases where one parent has decision making power (sole legal custody) but the parents split parenting time equally and share joint physical custody.
The Law Office of Emily E. Rubenstein is a full-service divorce and family law firm. We proudly serve Beverly Hills, West Hollywood, West Los Angeles, Santa Monica, Culver City, the South Bay, Glendale, Pasadena, Sherman Oaks, Studio City, Encino and all of Los Angeles County.
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Emily Rubenstein, Esq.
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