FAQ's - What is Joint Custody?
Q. What does "joint custody" mean?
A. Custody can be joint or it can be sole. The concept of "primary"
or "secondary" parent or custody has no legal meaning, although
we hear the terms used frequently. "
Sole legal custody" or "
sole physical custody," however, are very significant terms with important legal attributes.
"Joint custody" has historically been an extremely important concept in California custody law. However, it is something of a label too, and as a label things are beginning to change in the sense that the actual arrangement between parents is getting increasing attention in a number of child related contexts.
Joint custody embraces two related concepts: "physical custody" and " legal custody." Family Code section 3002. Physical custody has to do with the periods of time that a child is under the supervision and control of a parent; if a parent has the children, at that moment the parent is a "custodial" parent. Supervision and control does not simply refer to the child physically being in the presence of home of one parent or the other. Instead, it includes school, non-school activities, babysitting and daycare by third persons including grandparents and step-parents, and generally the delegation to others of the task supervising a child even if the parent themselves is working or elsewhere. Hence, physical custody really has to do with which parent of two parents is responsible for the time period in question.
"'Joint physical custody' means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to ensure a child of frequent and continuing contact with both parents...." Family Code section 3004.
"Joint legal custody" means that both parents shall share the right and the responsibilities to make the decisions relating to the health, education, and welfare of a child. Family Code section 3003. Per Family Code section 3083, this means that except where the Court specifies when parents must make joint decisions, "either parent acting alone may exercise legal control of the child."
"'Sole legal custody' means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child." FC section 3006. "'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." Visitation statutes are found at Family Code sections 3100 et seq. I will address them in another FAQ soon.
Q. What if the other parent and I agree?
A. This is always preferable. In fact, where parents have agreed to joint
custody a legal presumption arises "affecting the burden of proof,"
that joint custody is in fact in the best interest of the child. However,
this means that once the parties agree to this, the burden shifts to party
who later wants to challenge the arrangement to produce evidence sufficient
to upset it, which is not easy.
Family Code section 3080.
But, even if the parents do not agree, the Court has the power has the power to order joint custody if it determines it is in the BIC of the child pursuant to section 3011. (Section 3081). Again, if asked, the court must state its reasons on the record for or against its decision. (FC 3082). If you are a parent who is displeased with the Court's ruling, you need to politely ask the judge to state these findings!
Q. Why is joint custody important?
A. Besides the obvious qualitative aspects in your relationship with your children, custodial timeshare is extremely important to a parent's rights and ability to resist, or succeed, when one parent wants to relocate or move-away.