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There are two types of custody in California: legal custody and physical custody (also known as residential custody). Legal custody is the right and responsibility to make decisions for a minor child. This can take the form of either joint custody or sole custody. Physical custody (or residential custody) refers to where a child lives. Physical custody also can take the form of either joint custody or sole custody. California, by statute, expresses no preference for any particular arrangement (see section 3040 of the California Family Code).
Section 3040(b) of the California Family Code provides:
In California, custody determinations are made according to “the best interest of the child.” This is an important standard under California law. (see section 3011 of the California Family Code).
Sometimes parents will be able to come to an agreement themselves about how to share custody. If they cannot, a court may adjudicate custody. When considering “the best interest of the child” for purposes of custody, California courts consider several factors. These include:
- • The health, safety, and welfare of the child;
- • Any history of abuse to any child, other parent, or cohabitant;
- • Amount of contact with both parents;
- • Abuse of drugs or alcohol.
Child Visitation in California
The laws of California governing visitation are generally contained in the California Family Code, at sections 3100 to 3105 (a link here). To fully understand the law regarding visitation, it may also be necessary to read these sections with other California family law statutes and case law. It is always best to consult with a qualified family law attorney to know how the law applies to your particular situation.
Courts in California place importance on frequent and continuing contact with both parents and will generally grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interests of the child. Courts generally have broad discretion in determining “reasonable” visitation rights. It is important to remember that a court’s most important priority in any case involving visitation or child custody is to serve the “best interests of the child.” This is a very important standard under California law and it will generally guide a court in making a decision about visitation.
Courts look at several other factors in making a decision about visitation. These include the child’s age and maturity, how close a parent lives to the child’s primary residence and the child’s preference (if the court deems it appropriate).
In general, if a protective order (that is, a restraining order or a protection-from-abuse order) has been issued, courts will consider whether the best interest of the child requires that some or all visitation be supervised by a third person or whether visitation should be suspended or denied entirely. In such a case, courts would consider the nature of the acts that were the cause of the protection order and the amount of time that has elapsed since the protection order was issued. See California Family Code Section 3100 for more information about the law regarding visitation in cases of abuse or where a protection order has been issued.
Grandparent Visitation
Under California law, a court may, in limited situations, grant reasonable visitation rights to people other than a parent who have an interest in the welfare of the child. If a parent does not wish for a grandparent to have visitation rights, then a court must generally give special weight to the parent’s wishes and presume that the parent is acting in the best interests of the child. The issue of grandparent visitation is somewhat complicated because of a recent United States Supreme Court decision, Troxel v. Granville, which concerned grandparents’ custody and visitation rights. It is always best to consult a qualified family law attorney in cases involving custody and visitation rights.
To fully understand divorce law and family law, it may be necessary to read and interpret statutes with case law and regulatory law. It is important to check to see if laws are up date. For these and other reasons, it is always best to consult with a qualified family law attorney. The legal information on this website is not intended as legal advice and should not be relied on as such. It is intended only as an introduction to the way that the law functions in these areas.
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