How do courts determine who gets custody of children in a divorce?

     When parents cannot agree on the custody of their children, the courts look to the “best interests” of the children. Determining the child’s best interests involves many factors, none of which is the most important. California courts have also declared a policy of attempting to allow frequent and continuing contact with both parents. The court has broad power to ensure the welfare of children, however, and will keep that intention foremost in mind when making decisions.

What is the difference between legal and physical custody?

     Legal custody means that parents have the right to make important decisions about their children, such as those effecting health, welfare and education. Physical custody refers to the parent a child is living with at any given time. The courts can award both legal and physical custody to one or both of the parents in a divorce.

What does sole vs. joint custody mean?

     Joint legal custody means that the parents share in the decision making process about their children. Sole legal custody means that only one parent makes these decisions.

        Joint physical custody simply means that the parents share time with their children.  Sole physical custody means that the children live with only one parent.  Joint custody time-sharing arrangements are flexible and varied.   Some parents see their children only on holidays, others split time equally with the other parent.   The courts usually award visitation rights to the non-custodial parent in sole custody circumstances.

When it comes to custody, do California courts favor mothers?

     Most parents in California are still under the impression that in a dispute “Mom gets the kids,” and that Dad gets “some visitation.” In reality, the California courts have changed the custody goals in recent years to rebut this old stereotype.

     When it comes to custody matters, the goal of the courts – as prescribed in California Family Code Sec. 3040 – is to create a plan which is in the best interests of the children, and to aim for joint legal and joint physical custody. This often means an equal timeshare with both parents (sometimes historically referred to as a “50/50 split.”) The important implication here is that Dad has just as many rights to equal time with the children as Mom. This intention to grant both parents equal time with the children is simply what the court system believes is in the best interest of children. Judges often stress in their courtrooms the benefits to children of having both parents involved in their daily lives.

     The important distinction to recognize is that the “goal” of the court system is not necessarily determinative of the final custody outcome. In a perfect world, after a couple splits up, both parents would get along like old pals, live in the same neighborhood, be responsible and conscientious parents, and raise their children together without a single disagreement. Needless to say, this is not the reality we usually see.

     More often, we see custody arrangements with varying schedules, and unequal division of time between mothers and fathers. Sometimes mothers are given primary custody of the children, and other times, fathers are awarded primary custody. Fortunately, in most cases in California, the court’s custody decisions are no longer based upon biased preferences for mothers, but are based solely on the best interest of the child, which could result in any number of varying timeshare schedules.

     In making custody decisions, the courts take many issues into consideration as they are evaluating each parent individually. The court takes this job very seriously, effectively putting each parent under a microscope throughout the custody process. If a court believes that both parents are equally fit to care for the child, and the geographic distance between the parents is minimal, there is a high likelihood the court will strive for an equal timeshare with both parents. Even if an initial custody order does not reflect an equal custody arrangement, the court’s goal is always to move closer to an equal timeshare schedule as time goes by.

     Custody cases are far from black and white. With the diminishing stereotype that children belong only with their mothers, the courts are focusing on parents as individuals. While this may have the unintended effect of increasing an already complex litigation process, the court’s long-term goal of joint custody and equal timeshare is a reality that both parents need to understand when facing custody disputes.