If you and your spouse have had children during your marriage, and you are now contemplating getting a divorce, one of the most heated issues that you will have to deal with is child custody.
Child custody has to do with which one of a child’s parents will get primary custody, and which parent will get rights to visit the child, called visitation rights. Like with many other aspects of the divorce process, child custody is determined by the court if the separating spouses are unable to come up with a solution on their own.
Legal Versus Physical Custody
One of the big pieces of the child custody puzzle is the difference between legal and physical custody.
California, like most other states in the U.S., recognizes two different kinds of custody: Legal custody and physical custody.
Physical custody is concerned with which one of the child’s parents has physical possession of the child. In nearly all cases, divorce courts in California award joint custody to both child’s parents, in the thought that children benefit from having both parents involved in their lives and associating with each of them, even after a divorce. However, one parent is often granted primary physical custody, while the other parent’s physical custody rights come in the form of visitation.
This decision on physical custody is often a piece of a court’s decision on child support, as well, because the parent that has primary physical custody typically pays for the child’s living expenses, like food and clothing and medical bills. Therefore, the parent with only visitation rights will often be required to contribute to the cost of raising the child through financial support.
Legal custody, on the other hand, is concerned with which of the child’s parents is allowed to make important decisions about the child, like where he or she should go to school, or how to handle big medical decisions. In California, joint legal custody is very common, allowing both parents to have a say in these decisions. Sole legal custody is only a likely outcome if one parent is unfit, incapable of making these decisions, or it is in the child’s best interests that they not have legal custody.
Child Custody Can Be Agreed Upon
Like most of the divorce process, separating spouses have the power to agree on how child custody will be resolved following their divorce.
After one spouse files the divorce papers on the other spouse, initiating the divorce process, the discovery process begins. This is the period of time after the divorce begins, but before trial is set. Information is collected by both you and your spouse and agreements can be made with regard to many aspects of the divorce. Among these decisions is child custody. By agreeing to child custody terms, you and your separating spouse can avoid taking the issue to trial, saving the cost of court fees and avoiding a protracted legal battle that often proves stressful for both parents and children.
If you are able to amicably come up with child custody terms, then the parenting plan that you come up with can be attached to the dissolution papers and filed with the court. Unless the court finds a serious flaw in the parenting plan that you submit, the judge presiding over the divorce case will approve it and turn it into a court order that you and your ex-spouse will have to abide by, following the divorce.
Child Custody Can Be Determined By the Court
If child custody terms are not agreed upon during the discovery process of the divorce proceeding, then it will be resolved by the court in a trial.
Courts in California are primarily concerned with the best interests of the child in these situations, and will look at all of the evidence available in order to determine the child custody arrangement that is optimal for the children in the case. To make sure that the children’s best interests are protected, courts often will assign a guardian ad litem – an independent attorney – to represent the child in the proceeding.
If child custody arrangements need to be met while the divorce proceeding is ongoing, an Order to Show Cause can be filed with the court, requesting a hearing on the subject. This hearing will deal with how child custody will be handled in the lead up to the divorce trial, when it will be supplanted by the court order that deals with child custody.