What Does Primary Custody Mean and How Much Does it Matter?

Primary custody can be given or taken and here is what you must know

Having Primary Custody Means More Than You May Realize

In California, "primary custody" means a parent's custodial time with the child that is greater than the other parent.

The parent with "primary custody" is called the custodial parent. The other parent is the non-custodial parent. The custodial parent has the primary responsibility for the day-to-day care.

Primary custody is related to physical parenting time, also called physical custody. It is not related to legal custody, which is about important decisions regarding the children, educational and medical being two of the most important.

What are Examples of Primary Physical Custody?

If the only thing that matters is the amount or percentage of time, any parenting plan where one parent has more parenting time is a technical example of primary physical custody.

For example, if Parent A has 49% of the time and Parent B has 51% of the time, then Parent A has primary custody.

The most common custodial schedule where one parent has primary custody is the every-other-weekend schedule. On that schedule, one parent has every other weekend and a mid-week visit, while the other parent has the remaining time. The-every-other-weekend part of the schedule is usually from Friday to Sunday or Friday to Monday.

What if a Parent's Primary Custody is Different From the Court Order?

A court order is important. However, suppose one parent does not use their parenting time despite having a court-ordered 50/50 custody schedule. In that case, the other parent can argue they have primary custody, regardless of the court order. We explain why this is important below.

When does Primary Custody Matter?

Primary custody has several advantages:

  1. The parent with primary custody spends more time with the child and has the opportunity for a greater bond.
  2. The parent with primary custody has a greater chance of keeping primary custody because the status quo often remains the same in child custody cases.
  3. The parent with primary custody has an advantage in a child support case. Since parenting time is arguably the most important factor, the more time a parent has, the greater or lower their child support should be (depending on whether they are receiving or paying support).

How Do Some Parents Improperly Obtain Primary Physical Custody?

graphic of a mother with a child walking away from the father

A parent may gain primary custody improperly. Here are a few examples.

  1. A parent refuses to follow the court order and maintains custody of the child in violation of it. If the other parent allows that to continue, the other parent is allowing the parent to keep primary custody improperly.
  2. A parent may make false allegations of abuse against the other parent to gain primary custody.
  3. A parent may engage in parental alienation of the child to harm the other parent's relationship and eventually gain primary custody.
  4. A parent uses a tool like a right of first refusal order to demand additional custody time and to become the primary custodial parent.

In short, there are numerous ways one parent may keep a child from the other parent before or after a court order.

Can Primary Custody be Changed?

Yes, all custody orders are modifiable. Read more about custody modifications using the link below.

Contact Us to Discuss Your Child Custody Situation

See the links below to learn more about our family law firm, or to contact us to discuss your situation.

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