Written by attorney Gerald Anthony Maggio

Child Custody in California: What You Need To Know

Child Custody in California consists of two types of custody: legal custody and physical custody.

What is Legal Custody?

Legal Custody refers to who gets to make the decisions concerning the health, education and welfare of the child.

  • “Sole Legal Custody" means that one parent shall have the right and responsibility to make the decisions related to the health, education and welfare of the child (Family Code Section 3006).

  • “Joint Legal Custody" means that both parents share the right and responsibility to make the decisions concerning the health, education and welfare of the child (Family Code Section 3003). In making an order for custody concerning both parents, the court may grant joint legal custody without granting joint physical custody (Family Code Section 3085).

Family Code Section 3003 does not spell out any details of exactly what “Joint Legal Custody" entails, and so it is highly advisable that any court orders reached in your case include a detailed listing of the specific rights and responsibility of both parties as they pertain to joint legal custody. These specified rights and responsibility should include:

  1. The parents must confer in making decisions on the following matters: (a) Enrollment in or leaving a particular private or public school or daycare center; (b) Participation in particular religious activities or institutions; (c) Beginning or ending of psychiatric, psychological, or other mental health counseling or therapy; (d) Selection of a doctor, dentist, or other health professional (except in emergency situations); (e) Participation in extracurricular activities; and (f) out-of-country or out-of-state travel.

  2. The parent who has the physical care of the children at any given time shall have the routine decision-making rights and responsibilities during those periods of time; however, all major decisions pertaining to health, education and daycare shall be made jointly by the parents. No prior consultation is required between the parents regarding emergency medical or dental treatment, routine checkups, or minor illness. However, the other parent shall be notified immediately in the case of an emergency. A sharing of routine health information is encouraged.

  3. In the event that controversy arises regarding major decisions, both parents shall first consult together and if no resolution, meet and confer with an expert in the field related to the dispute, e.g. the child’s doctor, teacher, counselor, etc. If the consultation does not resolve the dispute, the parents shall return together to Mediation at the courthouse in an attempt to reach an agreement. Finally, if the dispute continues, it shall be submitted to the Court for a decision, and until then, the existing orders shall remain in effect.

  4. Neither parent shall enroll the children in activities that require a commitment from the other parent or interfere with a previously agreed upon or Court-ordered schedule without mutual approval. Parents are encouraged to attend their children’s activities. Parents are responsible for keeping themselves advised and for advising each other of all school, athletic, and social events in which the children participate.

  5. Pursuant to Family Law Code § 3025, both parents shall have the same access to psychological, medical, dental and school records pertaining to their children and shall be permitted independently to consult with any and all concerned professionals. The names of both parents shall be listed on school and extracurricular cards to be contacted in case of emergency

  6. Each parent shall notify the other of the name, address, and telephone number of each health practitioner who examines or treats the children; such notification to be made within one (1) day of the commencement of the first such treatment or examination.

  7. Neither parent shall submit the children to any psychological /psychiatric testing or evaluation or to any extended course of medical, dental, orthodontic, psychiatric or psychological treatment/counseling without first obtaining the consent of the other parent.

  8. Both parents are required to administer any prescribed medications for the children.

  9. Each parent shall be entitled to reasonable telephone communication with the children at reasonable hours. Each parent shall not interfere with the children’s right to privacy during such telephone conversations.

  10. Neither party shall change the surname of the children or cause the surnames to be changed on medical, dental, school, DMV records or other legal documents without the consent of the other parent or order of the Court.

  11. Either party may travel out of the State of California with the minor children.

  12. Should either parent move from their current residence, they shall advise the other parent of their new address and telephone numbers within 2 days prior to the move.

What Does Physical Custody Mean?

Physical Custody is much like it sounds, i.e. which parent has the child when and for how long. California law recognizes two types of physical custody:

  • “Joint Physical Custody" means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared in such a way so as to assure a child of “frequent and continuing contact" with both parents (Family Code Section 3004). In making an order for joint physical custody, the court may specify one parent as the primary caretaker of the child and one home as the primary home of the child for the purpose of determining eligibility for public assistance (Family Code Section 3086).

  • “Sole Physical Custody" means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation with the other parent (Family Code Section 3007).

  • "Joint Custody" means both joint physical and joint legal custody (Family Code Section 3002).

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