Child custody
If you’re facing the challenges of child custody, it is important to understand how custody decisions are made and what they mean for you and your children. Whether you are a parent who has recently separated or you are facing challenges with existing custody orders, having knowledge of legal and physical custody and the factors that influence these decisions is key.
At TCB Family Law Group, we’re committed to guiding you through the process of establishing or modifying child custody. We understand that no two families are alike and take the time to understand your family’s unique needs as well as any relational dynamics at play so we can customize a personalized strategy and solution to ensure the best possible outcome for you and your children. Custody matters reasonably tend to be more fraught given the fear and uncertainty associated with family transitions and concerns about the well-being of your children. We address each matter with compassion and expertise to ensure you are supported, educated and empowered to make the best decisions possible throughout the process. In addition, we have developed a “deep bench” of some of the most reputable experts in the fields of child development and dissolutions involving children to further support you as needed.
Guiding principles in custody matters
Child custody determinations in California are made on a case-by-case basis. In making these determinations, the courts are guided by the following principles:
Children’s Best Interests. The primary concern is for the children’s best interests, taking into account their health, safety and welfare. As part of this, the court considers history of child abuse, domestic violence, substance abuse, and mental illness, among other things.
Frequent and Continuing Contact. Absent a showing of detriment to the children (abuse, negligence, etc), it is in the children’s best interest to have frequent and continuing contact with both parents and for both parents to participate in the upbringing of their children.
Stability and Continuity. Absent a showing of detriment to the children (abuse, negligence, etc), courts attempt to maintain the status quo arrangements to ensure consistency for the children.
The difference between legal custody and physical custody
Legal custody refers to the parent’s rights and responsibilities to make major decisions impacting your children’s health, education, and welfare. This can include decisions regarding the following: health care providers, medical procedures and treatments, choice of school, participation in extracurricular activities, religious upbringing, obtaining a driver’s license, joining the military, etc. Until the court makes a determination about legal custody, parents share decision-making rights and responsibilities and should not make major decisions impacting the children’s well-being absent the other parent’s agreement.
Physical custody pertains to the children’s place of residence and day-to-day care, including timesharing arrangements, transportation, and the like. The primary goal in determining physical custody is stable and consistent living environment for the children.
Types of Custody Arrangements
Child custody arrangements can be broadly classified into several types based on the division of legal and physical responsibilities. These arrangements include:
Joint Legal Custody: Parents share decision-making responsibilities regarding their children’s residence, health, education, and welfare. This arrangement requires cooperation and communication between the parents regarding major decisions affecting their child’s life.
Sole Legal Custody: One parent has the exclusive right and responsibility to make decisions about the children’s health, education, and welfare. This type of arrangement is not the norm and more typically comes about where a parent is deemed unfit to make such decisions or in cases of extreme conflict (and thus an inability to agree on important decisions for the children).
Joint Physical Custody: Both parents enjoy substantial parenting time with the children. Under this arrangement, the schedule must ensure the children have “frequent and continuing contact” with each parent; but that does not necessarily translate to an equal timeshare. This arrangement is preferable when parents live relatively close to each other and can maintain a cooperative parenting relationship.
Sole Physical Custody: The child resides with one parent most of the time. While the other parent may have visitation rights, they do not have caretaking responsibilities for the children for any appreciable period of time. As with sole legal custody, this arrangement Is not the norm and tends to be limited to situations in which the parents do not live near one another or one parent is unable to provide the children with a stable household.
Nesting: Upon separating, some parents choose to allow the children to remain in the family home, while they rotate in and out per the custodial schedule. In our experience, this is a temporary fix and can add to heightened stress in the coparenting relationship.
Understanding the different types of child custody is essential for parents. It’s important to find solutions that are in the best interest of the children, making sure their needs and well-being are the main priority.
Developing a parenting plan
There is no “one size fits all” parenting plan for children. Rather, it is important to consider that every child has unique needs, depending on their age, relationship with their parents, level of maturity, any special needs, and their extended family, friends, community, cultural background, and other factors. Children tend to fare better where a) there is consistency in both households to ease the transition and b) parents are able to communicate effectively and cooperatively in making decisions regarding the welfare of their children.
When considering a parenting plan, it’s important to consider the following:
Child’s age, developmental stage, and needs.
Children’s temperament and how they deal with transitions.
Child’s attachment to each parent and siblings.
Previous parenting arrangements. If a parent has had limited involvement in child rearing, their contact with the child should start slowly and gradually increase consistent with the child’s adjustment.
Child’s school, extracurricular, and school activities.
Parenting abilities.
Providing a consistent predictable schedule with smooth transitions between households.
Ensuring that the child has frequent and continuing contact with both parents.
The level of conflict between parents. Higher levels of conflict require more detailed parenting plans with carefully considered transitions.
Safety concerns including domestic violence, child abuse, substance abuse, and serious mental or emotional conditions. When a child’s physical or emotional safety is at risk, it is necessary to protect the child.
There are several great resources which provide templates for developmentally appropriate parenting plans, which can be a good starting point from which to work:
Process: Out-of-court agreements versus litigation
Litigation of custody issues can be inordinately time consuming and expensive. More significantly, it lends itself to increased acrimony which takes a toll on the whole family unit and is particularly counterproductive to the children’s best interests. Given this, the courts have a strong policy preference for out-of-court resolutions. So much so, that California requires parties to participate in mediation before the dispute can be heard in court.
Out-of-court resolutions are almost always preferable because you, as parents, know your children better than anyone. Mediation empowers you to have some element of control over the outcome over decisions that will impact your children for years to come. This tends to be more satisfactory than having a complete stranger making decisions after limited exposure to the relevant factors in your matter.
Litigation becomes necessary in custody disputes when parents cannot reach an agreement through negotiation or mediation. Disagreements may arise regarding what is in the best interests of the children, and when an amicable resolution fails, the court’s intervention is required to make a decision. Litigation provides a structured legal framework where both parties can present evidence and arguments, and a judge can make an impartial decision based on the children’s welfare, safety, and emotional needs. This legal process ensures that the child’s rights and best interests are protected when parents cannot find common ground.
At TCB, our established team of divorce, custody, and family law experts has extensive experience assisting our clients navigate custody issues. We understand that custody matters are highly person and are committed to helping our clients arrive at positive, clear-minded outcomes that best serve their families.