This page includes general information on child custody and visitation. Every state has its own laws, and you should check the state that will be deciding who will have custody.
The information on this page is not legal advice. Child custody and visitation issues are the most sensitive of all family law matters, often with hidden and even unexpected complications. And, an attorney experienced in the state with jurisdiction over your case may be essential to obtaining what is best for the children.
Overview of Child Custody and Visitation
Like most aspects of family relations, the law in the field of child custody and visitation is usually state rather than federal. Child custody and visitation are legal terms describing the legal and practical relationship between a parent and his or her child, the bundle of rights and responsibilities of the parent, including the parental right to make decisions for the child and the duty to care for and protect the child.
In the case of divorce, generally, the court having jurisdiction of the divorce proceedings also determines who will have custody of children from the marriage. Under the common statutory provision, the parents of a child born within a marriage are joint guardians of that child and the parental rights of both parents are equal--each parent has an equal right to the custody of the child at the time they separate.
When a child is born without a marriage, federal law, the Uniform Child Custody Jurisdiction and Enforcement Act, governs which state has jurisdiction to decide who will have custody of children from the relationship. When they separate, a parent whose name does not appear on the birth certificate is not a joint guardian of that child and has no custody or visitation rights, until he or she is determined by a court to be a parent of the child.
What are "custody" and "visitation" really?
When parents separate or divorce, who will take care of the children and where the children will live needs to be decided. Broadly speaking, this is "custody."Similarly, "visitation" (sometimes called "time-share"), which simply means how each parent will spend time with their children, will also need to be decided.
In California, there are two kinds of "custody" between parents:
- Legal custody, which means who makes important decisions for your children (health care, education, and welfare), and
- Physical custody, which means in whose home your children actually live.
While legal custody has nothing to do with how much time a parent spends with a child, physical custody often goes hand-in-hand with visitation. And, generally speaking, the time that either parent spends with the children is called "visitation," even when one parent has a child significantly more than the other.
Though a judge makes the final decision about child custody and visitation, most of the time, the judge will approve any parenting plan that both parents agree on. If they can't agree, however, the parents must usually meet with either a court connected or a private mediator before the judge decides child custody and visitation after a court hearing or trial.
Are "joint" and "sole" custody that different?
In California, legal and physical custody is divided into two types, either parent can have "sole" legal or physical custody, or the parents can share "joint" legal or physical custody.
Comparing terms:
- Joint Custody, means joint physical custody and joint legal custody.1
- Joint Legal Custody, means that both parents share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.2
- Sole Legal Custody, means that one parent has the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.3
- Joint Physical Custody, means that each of the parents has significant periods of physical custody. Joint physical custody is usually shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.4
- Sole Physical Custody, sometimes called primary physical custody, means that a child resides with and is under the supervision of one parent, subject to the power of the court to order visitation for the other parent.5
A judge may decide to give a combination of sole and joint custody, such as giving the parents joint legal custody, but not joint physical custody.6 In that situation, the parents share the right and responsibility to make important decisions in the children’s lives. But, the children would live with one parent most of the time and the other parent would have visitations with the children.
Even where joint custody is given, a judge may specify one parent as the primary caretaker of the child and one home as the primary home for the child, for the purpose of determining eligibility for public assistance.7
A word of CAUTION--talk about sharing custody has become very informal, and "shared custody" has become a feel-good phrase casually used by attorneys and non attorneys alike (including mediators), but that term is legally (statutorily) meaningless. Even so, its use has become so commonplace that many courts have even begun to interpret "shared custody" as synonymous being with "joint custody."8 However, if the correct legal outcome is critical, call it what it is, "joint custody."
What types of visitation orders are there?
Visitation orders range from a parent having no contact with a child at all to situations where the parents have the children an equal amount of time. But, as varied as the parenting plans can be, the options generally fit into one of three categories:
- No Visitation: This may be the only option when visiting with a parent, even with supervision, would place the children at risk of being physically or emotionally harmed by that parent. When it is not safe for a parent to have contact with a child, no visitation should be given.
- Supervised Visitation: Sometimes a child's safety and well-being require visits with the other parent to be supervised in some way, either the visit itself or just exchanges. In other instances, supervised visitations may be needed if a child hasn’t seen a parent in some time and the two need time to slowly become more familiar with each other again. Supervised visitation, generally, requires allegations of abduction risk, sexual or physical abuse or neglect, domestic volence, drug abuse, or some other risk of harm to the child. Depending upon the risk factors, supervision may be provided by you or another adult. But, in the worst cases, a professional agency, or even a therapeutic supervisor, may need to supervise the visits.
- Visitation: The time that the parent who does not have the children more than half the time spends with the children is called visitation. If the parents are very cooperative, an order might just say something like "reasonable right of visitation to the party without physical custody." With conflicted, uncooperative, or undermining parents, very detailed visitation plans may be needed to prevent conflicts and confusion. And, crafting parenting plans that work is a true art form.
As the time-shares of the parents become more equal, low-time parents often become increasingly sensitive about the legal label, "visitation," and there is a tendency to simply call the time that both parents spend with the children "parenting time" or some other generic term.
How to Craft Parenting Plans that Work
1. California Family Code § 3002. Return to article >
2. California Family Code § 3003. Return to article >
3. California Family Code § 3006. Return to article >
4. California Family Code § 3004. Return to article >
5. California Family Code § 3007. Return to article >
6. California Family Code § 3085. Return to article >
7. California Family Code § 3086. Return to article >
8. In re Marriage of Brown & Yana (2006) 37 Cal. 4th 947. Return to article >