The State of California considers both parents to be equally responsible for the care and wellbeing of their children, to have the right to spend time with their children, and to have the right to make decisions concerning how their children are to be raised.
It is the policy of the state that it is in a child’s best interest to be parented by both parents. However, in some rare instances, one parent may be entirely incapable of safely and soundly parenting a child. In these instances, sole legal and sole physical custody may be given to the other parent, but this is not a decision that the Family Court takes lightly.
Sole physical custody means that a child resides with and is under the supervision of just one parent, subject to the power of the court to order visitation. (Family Code, section 3007.) Joint physical custody means that each of the parents will have significant periods of physical custody. (Family Code, section 3004.) Sole legal custody means that one parent makes the decisions relating to the health, education and welfare of a child. (Family Code, section 3006.) Joint legal custody means that both parents share the right and the responsibility to make decisions relating to the health, education and welfare of a child. (Family Code, section 3003.)
When one parent requests sole physical and sole legal custody, serious questions must first be answered.
We ask whether the request is being made from a legitimate concern for the health or safety of the child. In most cases, it must be shown that continued contact with the other parent puts the child at risk in some way. The first step is to try to understand why the client believes continued shared custody with the other parent poses a risk to the child. For example, is there a history of abuse by the other parent or is there evidence of habitual or continual abuse of alcohol or prescribed controlled substances by the other parent. Unless the other parent is engaging in demonstrably dangerous or other behavior that seriously threatens the well-being of the child, some shared parenting arrangement is almost always in the child’s best interest.
However, when we talk about joint physical custody, parents often assume this means a strict 50/50 split share of the child’s time.
If there are parenting concerns, it is important to keep in mind that there are many other types of timeshare arrangements that can work for the family and the child’s unique needs. If you have concerns about the most appropriate custodial arrangement in your case, it is important to talk to your attorney honestly about all the creative ways these concerns may be addressed short of the most extreme measures such as sole legal and physical custody to just one parent.
