Legal And Physical Custody Explained

Hossein Berenji, Apr 30, 2015

There are two types of child custody in California, legal and physical custody. While both are equally important, individuals tend to argue and fight over physical custody a lot more than legal custody.

Legal custody is the custodial rights over legal issues such as issuance of passport, issuance of driver’s license, decision making over non-emergency medical care, choosing the minor child’s school and doctors, etc. Physical custody is exactly what it sounds like, it is the physical custodial rights over the minor child.

Legal Custody

Legal custody of the minor children is usually joint unless one side can show that the other is not making decisions in the best interest of the minor child or that they are so difficult to deal with and or not accessible, that making joint decisions is very difficult and/or not in the best interest of the minor child.

For example if the father is in jail for any reason, then the mother can seek sole legal custody. Note that it is not necessarily the crime, although it can be, for which the parent is in jail for that justified an order for sole legal custody. The fact that the parent in prison is unavailable to cooperate with the other parent and make joint legal decisions for the minor child is the main factor justifying sole legal custody. The nature of the crime and the fact that the parent is in jail might also have a great impact on the court’s decision to award sole legal custody to the other parent.

Physical Custody

With respect to physical custody, when parties separate it is the court’s goal to maintain the status quo in order to reduce any dramatic shifts in the child’s routine. This doesn’t mean that things will always stay this way. However, when parties separate, it is usually one spouse who, after the birth of the child has reduced time from work to raise the children. The main caregiver will be able to show that he or she should have primary physical custody and the other party should have visitation rights in order to maintain this status quo.

As stated earlier, things don’t need to stay this way. The parent who had not spent as much time with the minor child before separation has the ability to show to the court that he or she would like to take a more active role in the child’s life. This parent can seek additional time progressively if he or she demonstrates a consistent ability and desire to spend more with the child.  The court will often reward such effort with a move towards a 50-50 physical custody arrangement.

Obviously many factors will determine what the court will decide to do with physical custody and visitations. Other factors, can be the age of the minor child, parent’s work schedule, availability to take care of the child afterschool, domestic violence. 

If you have more questions regarding custody, call Berenji & Associates Divorce Lawyers today for a free case evaluation.

Berenji & Associates Divorce Lawyers
9107 Wilshire Blvd #750
Beverly Hills, CA 90210
(310) 271-6290