Child Custody and Visitation in a California Divorce.

Note: This article is not legal advice and is not intended to apply to your specific situation.

Child custody and visitation are issues that arise not just when there is divorce, but also for unmarried couples who have a child and end their relationship. Child custody and visitation frequently present some of the most emotional and disagreed upon issues in a divorce case.

Physical Custody & Legal Custody.

There are two types of custody orders in California, legal custody and physical custody. When making a custody order, the judge can order either joint or sole legal custody, and joint or sole physical custody. Legal custody refers to who has the authority to make important decisions regarding a child’s education, welfare, and healthcare; and physical custody refers to with whom the child will stay with physically. In a California divorce, both types of custody can be contested, and ultimately any custody determination would be made with the child’s best interest at heart.

The first thing to keep in mind is that the mother and father are equally entitled to custody of the children. California Family Code § 3010. Also, it is California’s policy to ensure that children have frequent and continuing contact with both parents. California Family Code § 3020(b). But, the rights of the parents need also be balanced with the health, safety and welfare of the children.

This is because in making any orders regarding the physical or legal custody or visitation of children, the court’s primary concern in determining the best interests of the child is the children’s health, safety, and welfare. California Family Code § 3020(a). Under California Family Code § 3011, a court shall consider the following in determining what is in a child’s best interest when making a custody order:

  • The health, safety, and welfare of the child;

  • Any history of abuse by one parent or any other person seeking custody against any of the following: the child; the other parent; or a parent, spouse, cohabitant, or romantically related person to the parent seeking custody;

  • The nature and amount of contact with both parents; and,

  • The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent.

The type of custody you have or share with the other parent ultimately determines the rights and obligations you have in relation to the child and other parent.