Child Custody terms and definitions by family law attorney Paul Staley
In our law office we want our clients to know as much as they can about the child custody issues that they might face. Here is a overview of Child Custody terms and definitions used in the San Diego Family Law Courts
How does the Court determine Custody If parents do not agree on a custody arrangement, the next step is mediation in the San Diego Courts, which is a meeting run by a social worker/psychologist. After meeting with the parents (and possibly interviewing the child), the mediator will write recommendations to the court, which guide the judges decision.
The judge must make a custody arrangement which is in the child’s best interest.
Factors include but are not limited to: existing caretaking patterns and parent-child bonds, whether one parent is a perpetrator of child abuse or domestic violence, whether one parent has engaged in certain violent crimes or has a drug or alcohol addiction impacting parenting ability, and/or where the child’s siblings reside. What is not included or considered is religion or sexual preference. The mediator and the judge want to be sure that the child has a stable environment and will attempt to minimize the amount of disruption in the child’s life.
- Legal Custody: Did you know that there are two types of custody? Legal custody is the term used to designate which parent is authorized to make medical, health and educational decisions for the child/children.
- Sole legal custody: This term applies when only one parent is granted the right to make decisions regarding the child.
- Joint legal custody: In most cases, parents will have joint legal custody, which gives them equal decision-making power. A parent can have joint legal custody without having physical custody of the child. For example, a parent who lives in another state won’t have physical custody because the child does not live with him/her on a continuous basis. However, that parent may still have legal custody which gives him/her the right to participate in the decisions which affect the child’s well being.
- Physical custody: Physical custody is the term we use for defining who the child is living with and spending time with. Of course with a term that broad, the court needs ways to further define physical custody:
- Sole physical custody: This term applies when the child is living exclusively with one parent. When one parent has sole physical custody, he/she is the “custodial parent.” The other parent is the “non-custodial parent” and will usually have the right to visit the child (see definition of visitation, below).
- Joint physical custody: This term is used when each parent has significant periods of time with the child and sees the child on a frequent and continuing basis. Parents can have joint physical custody even when one parent is spending more time with the child than the other parent.
- Primary Custody: This term is used to designate which parent has the child / children most of the time (over 50%). A parent who has sole physical custody is always going to have primary custody. A parent who has joint physical custody may or may not have primary custody. For example, if the child lives with dad 60% of the time and with mom 40% of the time, dad and mom have joint physical custody, but dad has primary physical custody because the child lives with him over 50% of the time.
- Visitation: When a parent does not have joint physical custody of a child, he/she usually has a right to visitation. This means that the parent will have set times to spend with the child/children. Depending on the circumstances, visitation can be as frequent as a few visits a week or as infrequent as a week over the summer. While some parents keep the visitation very loose and flexible, other parents prefer to have a set schedule and routine.
- Supervised Visitation: If a parent has a history of abusive or addictive behaviors, it may be necessary to start with supervised visitation. Supervised visitation means that the parent and child spend time visiting at a court-approved facility. A third person (usually a social worker) will monitor the visit to make sure that the child is safe and the parent is not engaging in negative behaviors. After the parent has shown that he/she does not engage in negative behaviors, the parent, child and supervised visitation monitor can leave the facility site and have visits in a more natural setting. Because supervised visitation is costly and not an ideal environment for building a parent-child relationship, it is usually only used for transitional periods or short periods of time.
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