With child custody, the goal [best interests under Family Code § 3011 – “an elusive guideline that belies rigid definition" Adoption of Matthew B.(1991) 232, Cal.App.3d 1239, 1263] under Family Code § 4011 is the same for all but the plans need to be tailored to the developmental stage, the individual circumstances, and the parenting roles exercised in each family. If the children have lived with one parent for a significant period of time, then continuity and stability might suggest maintenance of the current timeshare. Burchard v. Garay(1986) 42 Cal.3d 531, 538.
Studies have proven that children enjoying healthy relationships with two active parents perform better socially and academically. Yet, aiming for continuous and frequent contact with both parents through the one-size-fits-all approach alternate weekends and a midweek visit is not necessarily in the best interests of the children. Then there are practical concerns to consider in shaping a realistic custody plan such as travel time between parents, the work schedules of the parents especially with business travel, school schedules, sports and arts activities, summer jobs and extended families. In shaping a parenting plan, consideration needs to be given to any applicable drug or alcohol abuse as well as with any physical abuse. In these situations, the benefit of a high level of communication and cooperation between parents might not be available. In the majority of cases, the parents with counsel and often other third parties such as court mediators or mental health professionals, likely will resolve the most important decisions about their own children and craft a parenting plan. When unable to reach a resolution, a hearing by a judge will determine the best interests of the children.
- Legal Custody: Family Code § 3003 provides that joint legal custody has both parents sharing in the rights and responsibilities to make decisions related to the health, education and welfare of the children (sometimes decisions need to be mutual if specified – Family Code § 3083 – otherwise either parent acting alone has authority). Family Code § 3006 provides that sole legal custody has one parent as the decision maker.
- Physical Custody: Family Code § 3004 defines joint physical custody as each parent with a significant period of physical custody, so that there is frequent and continuing contact – but not necessarily equal or even approximately equal. Still, one parent in a shared custody arrangement can be designated as the primary caretaker and one home as the primary home pursuant to Family Code § 3086 (public assistance related). Sole physical custody under Family Code § 3007 means the child lives with one parent and visits with the other.
Yet, these physical custody labels are not as impactful on a day to day basis as the parenting plan. The myriad options available for the schedule of every other weekends – with or without one or two midweek evening or overnight, or alternate the weekends and split the school week, or Saturday to Wednesday and Wednesday to Saturday (switch with different days to divide the week), or week on and week off (with or without midweeks), or 2-2-5-5- or 3-3-4-4, or any combination of time at all still needs to work for the children’s best interests and work as a practical matter for the parents’ schedules. Sometimes input from the children either through a 730 evaluation, minor’s counsel, or testimony provides the clearest input, and this recognition can lead to higher levels of satisfaction with post-divorce parenting. For children 14 years on up, Family Code § 3042 requires the court to consider alternative methods of receiving input from the children. In all custody cases, communication between the client and attorney is key, and, if needed, the presentation of the pertinent facts either in settlement discussion or to the court will then be that much more persuasive.