Know the Laws: California
UPDATED August 2, 2016
WomensLaw.org strongly recommends that you get in touch with a lawyer in your community for more information on custody. Go to the CA Where to Find Help page for a listing of organizations that can help. For more information about custody and visitation, you can also visit the California Courts Self Help Center.
When the court issues a custody order, it will address these two parts of custody:
Physical custody is the physical care and supervision of a child (under 18 years of age). In other words, it addresses who the child will live with on a day-to-day basis.
Legal custody is the right to make major decisions about your child, like where your child goes to school, what kind of health care s/he receives, or what kind of religious training s/he attends.*
* See Ann.Cal.Fam.Code §§ 3002-3007
Joint custody means you share custody with the other parent. In California, there is not a preference for joint custody as there is in some other states.*
Joint legal custody is when both parents have equal rights and responsibilities for major decisions concerning the child.** These decisions include the education, religious training, counseling, health care, extracurricular activities, as well as where the child will live. The court may assign one parent to have sole power to make certain decisions and may give both parents equal rights and responsibilities for other decisions.
Joint physical custody is when custody is shared in a way that gives both parents frequent and substantial contact with the child.*** It does not necessarily mean that the child spends half of the time with each parent. Instead, the child spends blocks of time with each of the parents, who share the right and responsibility to raise the child in their homes. Each parent has more than simple visitation privileges.
* Ann.Cal.Fam.Code § 3040(c)
** Ann.Cal.Fam.Code § 3003
*** Ann.Cal.Fam.Code § 3004
Sole custody means that you don’t share custody with anyone else. When each parent wants sole custody, one of the factors the judge will consider is which parent is more likely to allow the child frequent and continuing contact with the non-custodial parent *
Sole legal custody is when only one of the parents has the right and responsibility to make major decisions concerning the child (relating to the health, education, and welfare of a child).** You do not have to discuss your decisions with the other parent.
Sole physical custody is when only one parent is responsible for the physical care and supervision of the child.*** The non-custodial parent (parent without custody) usually will have visitation privileges.
* Ann.Cal.Fam.Code § 3040(a)(1)
** Ann.Cal.Fam.Code § 3006
*** Ann.Cal.Fam.Code § 3007
There are many reasons people choose not to file for custody. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents think going to court will provoke the other parent, or they are worried that if a custody case is started, the other parent will suddenly fight for (and get) more custody or visitation rights than they are comfortable with.
However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time -- and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to CA Finding a Lawyer to seek out legal advice.
WomensLaw.org would like to thank Dennis K. Rothhaar for his help in putting together a prior version of this material.