10 Big Secrets of California's Child Custody Laws
Anybody can explain legal custody, physical custody, and generally what the best interests of a child mean. But that is not why you are here. You are here because you want to know the parts of California's child custody laws that very few discuss.
These are the "secrets" to our child custody laws. We call these secrets of California child custody laws because few people outside the legal profession know about them, and lawyers do not share them often enough with their clients, even though they should. If all parents knew these ten secrets, they would make better choices.
Here are the topics we will cover. Click on any link to jump to that section.
1. Joint Physical Custody Does Not Mean 50/50
2. Legal Custody Is Not Always Joint or Sole
3. Parenting Time is Not Based on Which Person is the Better Parent
4. Courts Cannot Give a Parent Less Time Just Because They Work
5. Modifying Parenting Time Does Not Always Require a Significant Change
6. A Parent Can Lose Custody for Violating a Custody Order
7. A Child Custody Evaluator Does Not Tell the Judge What to Do
8. A Domestic Violence Finding Usually Means No Joint Custody
9. Drug or Alcohol Use Is Not Enough for Sole Custody
10. Filing a Request to Move with a Child is Risky
1. Joint Physical Custody Does Not Mean 50/50
Under California child custody laws, "joint physical custody" does not automatically mean 50/50 parenting time.
California Family Code Section 3004 states:
"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 assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020."
So, while "joint" physical custody means both parents get significant time, that significant time may not be equal. As long as the child has frequent and continuing contact with both parents and especially if that time is at least 35% to 50%, it is usually considered joint physical custody.
2. Legal Custody Is Not Always Joint or Sole
Under California Family Code Section 3003, joint legal custody means both parents share the right and responsibility to make decisions about their child's health, education, and welfare.
Sole legal custody, as defined in Family Code Section 3006, grants one parent the exclusive right and responsibility to make such decisions.
But it is not always joint or sole. Sometimes, it is both.
California child custody laws permit parents and courts (when parents do not agree) to tailor custody arrangements to fit the unique needs of the child and family. Here are some examples of how this might work:
- Education: Parents may share joint legal custody regarding their child's education, meaning they both participate in decisions about school choice, extracurricular activities, and special education needs. However, one parent may have sole legal custody over special education decisions if a child has special needs or is particularly gifted.
- Healthcare: Both parents might have joint legal custody over most healthcare decisions, but one parent may be the ultimate decision maker on particular mental health needs of the child.
These are two of many different examples where the parents have a hybrid joint and sole arrangement. These situations typically arise if one parent is not fit to make those choices or, even if they are fit, has shown themselves too high conflict to prioritize the child's best interest.
Courts may also create these hybrid arrangements by requiring parents to confer on the issues, but if the parents cannot agree, one parent is the tiebreaker.
3. Parenting Time is Not Based on Which Person is the Better Parent
A common misconception is that the parent who appears more capable or who is perceived as the "better" parent will be awarded more parenting time. However, California child custody laws do not seek to judge parents against each other but rather to determine how each parent's involvement will serve the child's best interests.
Family law courts realize parents have different styles. Consider the following:
- Strict vs. Lenient: One parent may be more strict, consistently enforcing rules and consequences, while the other might be more lenient, using flexibility and discussions to guide behavior.
- Nurturing vs. Encouraging Independence: One parent might be more nurturing, providing constant emotional support and comfort, while the other encourages independence and self-reliance.
- Academic vs. Experiential Learning: A parent who emphasizes academic achievement might focus on structured learning and homework, whereas a parent who values experiential learning could encourage exploration, hands-on activities, and life experiences.
- Structured Routine vs. Spontaneity: One parent might stick to a strict routine, providing stability and predictability, while the other embraces spontaneity, encouraging adaptability and resilience.
- Hands-On vs. Hands-Off: A hands-on parent might be deeply involved in every aspect of the child's life, from schoolwork to extracurricular activities. A hands-off parent might allow the child to explore and make mistakes independently.
Is one parent better? Perhaps. But unless the differences significantly impact a child's health, safety, education, or general welfare, the court may not see that difference as important enough to give the "better" parent more time.
4. Courts Cannot Give a Parent Less Time Just Because They Work
Employment status cannot be a basis for reducing a parent's time with their child unless it is an unusual situation where the parent works unusual or excessive hours. A parent who works a normal work week and needs childcare should not get less parenting time. While there may be situations that may compel a different result, those situations cannot just be based on the non-working parent's argument, "But I am not working, and so the child should be with me," as an argument.
5. Modifying Parenting Time Does Not Always Require a Significant Change
A significant change in circumstances can warrant a modification if there is a custody judgment. In a custody judgment that is a final child custody adjudication, a change in custody requires such a showing.
But sometimes, minor adjustments can be made to judgments without showing a significant circumstance.
For example, if a parent with 25% parenting time wants to modify the schedule to 30% parenting time, that may not be a big enough swing to be a change in custody. However, if a parent with 25% wants to go to 50/50, that may require a higher showing.
6. A Parent Can Lose Custody for Violating a Custody Order
Violating custody orders, such as not adhering to the agreed visitation schedule, can have severe consequences, including the potential loss of custody. A parent can also be held in contempt of the family court order.
Some parents think they can do what they want despite a court order. If the other parent pursues a modification or contempt action, the parent who violated the court order may find themselves in contempt and lose legal and/or physical custody, depending on the seriousness of the violations.
7. A Child Custody Evaluator Does Not Tell the Judge What to Do
Evaluators provide recommendations based on their assessments, but ultimately, the judge makes the final decision. The evaluator's input is just one of many factors considered.
Some judges place a lot of weight on an evaluator's recommendations. But too many parents think that is a rubber stamp process. It is not. If the custody evaluator did a poor job, you can challenge the recommendations, and there is a proper legal process to do it right.
8. A Domestic Violence Finding Usually Means No Joint Custody
In cases where there is a finding of domestic violence, the court is likely not going to award joint legal or joint physical custody to the abuser. The presumption against joint legal and physical custody is hard to overcome. Parents should take the law seriously if they are in a high-conflict relationship. Resorting to abuse is not only a poor choice; it can cost that parent the ability to raise their children as they want.
Sadly, this is also why there are a lot of false domestic violence allegations out there.
9. Drug or Alcohol Use Is Not Enough for Sole Custody
A parent's past drug or alcohol use, by itself, may not be enough to grant sole custody to the other parent. California law is less focused on use and is more focused on abuse. And on abuse, the law focuses on habitual or continual use.
10. Filing a Request to Move with a Child is Risky
Relocating with a child can significantly impact custody arrangements.
Courts take move-away requests seriously. Once a parent files a move-away request, if they go to hearing and lose, the court is supposed to make custody orders assuming that the parent who asked for the move-away and lost is still moving without the children. That means the court will likely award custody to the other parent.
That is why it is important that any parent who files a move-away request be ready to take the risk that a court may deny the request. Parents must have a legal analysis of their situation done by an experienced child custody attorney so they know what they are up against and whether their move-away position has merit.
You Now Know 10 Secrets About California Child Custody Laws
These ten secrets highlight some lesser-known but important aspects of California child custody laws. Understanding these can help parents make informed decisions and better navigate custody disputes.
Suggested Related Reading
Reasons a Parent Can Lose Custody of a Child
How Does Domestic Violence Affect Child Custody?
Child Custody Move Away Request
Suggested External Reading
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