Legal language and communication can fairly be referred to as “legalese” and even within the legal community itself, there can be common misuses of terminology, slang equivalent usages of terms or phrases, or just outright misnomers.
A specifically confusing area of terminology that leads to problems on various levels is the terminology and language surrounding “custody” on the context of child custody orders in Family Law proceedings.
I experience this commonly in my client communications and during a roundtable with colleagues, it became apparent that we are all experiencing the same or similar issues regarding confusion stemming from child custody language and terminology used by lawyers, clients, and the court.
In an effort to translate legalese into a more palatable and clear explanation, I’m going to break down the different common custody types, what they mean, and caution the use of a particular term that is often used by Clients, Courts, and attorneys alike that can lead to undue confusion.
Types of Custody Orders:
There are various types of child custody orders that a judge may grant. They may also not necessarily be mutually exclusive and could be combinations of one another as well.
What is “Legal Custody”?
Legal custody pertains to the authority and responsibility for making important decisions regarding the child’s health, education, and welfare. There are two distinct legal custody orders available:
Sole Legal Custody:
This order grants one parent the exclusive right and responsibility to make decisions related to the child’s well-being, including schooling, religious practices, medical choices, travel plans, and residence (as per Cal. Fam. Code § 3006).
Joint Legal Custody:
This order involves both parents sharing the right and responsibility to make decisions concerning the child’s health, education, and welfare (as per Cal. Fam. Code § 3003). This arrangement aims to allow parental involvement and equal input in important matters.
Joint Legal Custody Is More Common Than Sole Legal Custody:
Generally, courts in California prefer joint legal custody to ensure both parents remain actively involved in their child’s life and have a say in crucial decisions.
However, the Court may decide that joint legal custody is just not going to work. This could be for a variety of reasons, including if a parent is incarcerated, has significant mental health issues, has a history of domestic violence or child abuse allegations, and/or for other reasons that the Court deems that parent or person to be unfit for decision-making regarding the child’s well-being and best interests. This is not an exhaustive list of all the reasons the Court could come to this conclusion as well.
What Does “Physical Custody” Mean?
Physical custody determines with which parent the child will primarily reside. There are two types of physical custody orders that exist:
Primary Physical Custody:
This provides that the child/children will live with and be under the supervision of one parent, subject to visitation rights granted by the court. This parent will be called and considered the “Custodial Parent” for the purposes of custody discussions. The custodial parent could be either you or the other parent, and the noncustodial parent typically receives visitation rights.
“Primary Custody” as a term is often problematic because it is commonly used incorrectly on various levels by laymen, lawyers, and even the Court leading to confusion as to what specifically is being referenced.
As a result, it’s important to indicate that its specifically primary physical custody that is being discussed and that in using that term, it is understood to mean the parent that has the predominant amount of timeshare with the child if not all time aside from ordered visitation time.
Joint Physical Custody:
This provides for each parent to have significant periods of physical custody, allowing the child to have regular and ongoing contact with both parents. This also and confusingly, does not necessarily mean that time between the parents and children will be equal and time sharing could vary between parents widely based on numerous factors.
What does “Sole Custody” Mean?
Sole custody refers to an order granting one parent exclusive legal and physical custody of the child. This is another somewhat dangerous and/or confusing term and its use should be provided with added detail as to specify that you are meaning it or understanding it to be both sole legal and sole physical.
It is possible to have sole physical for example but then joint legal and misuse of this term without further specification could lead to a misunderstanding of what is being discussed or what ha seen ordered.
What Does “Joint Custody” Mean?
Joint custody involves both joint physical custody and joint legal custody. Under this arrangement, both parents share equal decision-making power regarding the child’s health, education, and welfare. The child resides with both parents, but the division of time may not be precisely equal due to practical consideration.
This is another somewhat dangerous and/or confusing term and its use should be provided with added detail. This is because it’s possible to have joint legal custody for example, while simultaneously not having joint physical custody in some circumstances.