Child Custody

Santa Rosa family law attorney Michael Benavides represents clients in contested child custody proceedings in Sonoma County. For many parents, his affordable hourly rate allows them to secure legal representation until the final judgment, whereas their former spouse may have exhausted funds on another attorney early in the process.

Child Custody & Visitation

Under Family Law, the concepts of child custody and visitation refer to the rights and responsibilities of parents over their children (custody) and the right of a parent to spend time with the child (visitation).

Child custody and visitation is usually contemplated in the event of a disruption of marital relations such as divorce or separation.

The Two Types of Child Custody

There are two types of child custody recognized under California law: legal custody and physical custody.

Physical Custody

Much as the term implies, physical custody refers to the right to the child’s physical presence. This means that the parent with physical custody has the right to have the child live in their home.

The party with primary physical custody of the child is also sometimes referred to as the custodial or residential parent.

If one parent has sole physical custody, the other parent, or the non-custodial or non-residential parent, is typically granted visitation rights.

If both parents are granted joint physical custody, the child’s time is divided between both parents, and the terms of such shared joint custody can be decided by the court.

It is important to remember, however, that being granted physical custody does not necessarily mean that the custodial parent also has legal custody. Under California law, courts may grant legal custody to a parent or guardian other than the custodial parent.

Legal Custody

Legal custody refers to the right of a parent or guardian to make decisions about the child’s health, welfare and education.

Legal custody can refer to decisions such as where a child will go to school; whether a child should take up extracurricular activities; whether a child should receive medical care; decisions about a child’s religious affiliations or activities; a child’s counseling or therapy needs; or the advisability of travel for the child.

In the interest of preserving the unity of a home for the sake of the child, the courts will support joint legal custody whenever feasible. They may, however, grant primary legal custody to only one parent or even to a guardian, if warranted by circumstances.

And in the same way that physical custody can be granted separately from legal custody, legal custody can also be given separately from physical custody.

For instance, legal custody can be granted solely to one parent, or jointly to both parents, or to a selected guardian, but this does not necessarily mean that the legal custodian will also have physical custody of the child.

Some instances when parents are not given legal custody over their child are if the parent is deemed unfit or incapable of making a decision regarding the upbringing and general welfare of the child. On the other hand, physical custody may not be given to a parent if the parent is not able to provide a stable home and cannot afford to support their child’s material needs.

The Best Interest of the Child Governs

Based on the court’s analysis as to what would be in the best interests of the child, a court may set the terms of child custody and visitation agreements accordingly. There are a number of variations that might then ensue, including:

• Both parents share joint legal and physical custody;
• One parent has physical custody and the other parent has legal custody;
• One parent has physical custody and the other parent has visitation rights, but the legal custody over the child resides in a third party; or
• One parent has physical custody but both parents share legal custody

Courts are granted some leeway in their decision, and the law does not prescribe a formula other than the declaration of basic principles and standards. This is because each child custody and visitation arrangement has to be tailored to each child’s specific situation and family circumstance. The court will have to take into consideration all factors, including the child’s expressed wishes, in making its decision.