SOLE PHYSICAL CUSTODY IN CALIFORNIA
What is sole physical custody and when is it proper to order?
Sole Physical Custody in California
Sole physical custody usually means the children will live with one parent most of the time while the other parent has certain, designated parenting time. Sole physical custody does not always mean one parent has 100% parenting time to the exclusion of the other parent although that is also an extreme form of sole physical custody.
Let's take a deeper look into sole physical custody in California.
Sole Physical Custody
I always found the term sole physical custody amusing for that reason. What does the term “sole” mean, if not exclusive?
For this reason, over the years, the term primary physical custody started to replace the term sole physical custody in those situations where one parent has the great majority of the time with the children but the other parent still does have certain designated parenting time.
The problem with the term primary physical custody is that there's really no Family Code section that defines it. It is a term born from convenience rather than the law.
Sole physical custody certainly has advantages for a parent that has that order. Probably the most distinct advantage is a sole physical custody order gives that parent a presumptive right to move with the child. Now that does not mean that parent can simply take off with the child whenever he or she wants. The court has the power to restrain a parent's move.
Family Code 7501 states:
“(a) A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.
(b) It is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4th 25, and to declare that ruling to be the public policy and law of this state.”
That Burgess decision is an interesting case and it is beyond the scope of this page to go into Burgess in a lot of detail.
Typically, a parent who intends to move with the child because that parent has sole physical custody (even if that sole physical custody is not 100%), should carefully review his or her court order and also privately consult with a lawyer to determine what kind of notice he or she needs to give the other parent and what the consequences may be once the parent gives the notice. These are complex issues and a parent should never undertake to represent him or herself.
Unfortunately, like most things related to custody, there is also a financial advantage to being the sole custodial parent or the primary custodial parent. United States tax law, as of the date we write this, states the custodial parent is the parent who has physical custody for a greater number of nights per calendar year.
This is especially important for claiming what is often called a child tax credit or child dependency exemption. Even these issues can get complicated with parents who have close to 50-50 parenting time.
Interested to learn more about physical custody orders? We have more informative articles on physical custody linked below.