This is a question I get with some frequency, and to which there is not a very good answer.
Legal custody refers to the right to make decisions concerning the child's health, education, and general welfare. Physical custody refers to the time the child spends with each parent.
In Nevada, there is a statutory presumption for joint legal custody and a statutory preference for joint physical custody. In California, we have no such statutory preferences or presumptions, unless the parents agree to joint custody, or if there is a history of domestic violence in the family.
However, joint legal custody is common in California. Essentially, parents typically share joint legal custody, unless one of the following is true:
- The parents are completely unable to make decisions together;
- One parent is deemed unfit;
- One parent is incapable of making decisions regarding the upbringing and general welfare of the child; or
- It would be in the child's best interests for one parent to have sole legal custody.
It is very difficult, and requires a great deal of proof to establish that a parent is unfit or incapable of making decisions. These conditions require objective evidence, rather than a subjective opinion that a particular parent is not as good as the other parent. Unless there is bonafide evidence of domestic violence, or CPS has been involved, I let my clients know that joint legal custody is likely to be ordered.
With respect to physical custody, generally if one parent has an 80% timeshare and the other has a 20% timeshare, then the parent with the 80% timeshare essentially has “sole physical custody” and the parent with the 20% timeshare has “visitation.” For 50/50 and 60/40 splits, the parents generally have “joint physical custody.” Joint physical custody is not strictly defined by the Family Code, rather it is interpreted to mean that both parents share substantial time with the children.
In California, the court will make initial custody orders that are in the “child's best interests.” As a starting point, the court will typically look to the status quo. If the child is doing well with the status quo, then the initial court order will likely be similar to the status quo. If the child is not doing well with the status quo, or if one parent is trying to cut the other parent out of the child's life and the other parent wants to be involved, then the court will usually make an order that address those issues.
So, to address this question, you should try to create a status quo in which the other parent spends time with your child or children on terms with which you are comfortable. The more time you give the other parent now, the more time the court will likely give the other parent in the initial custody order. However, please be mindful that if the other parent wants to and is trying to spend time with your chidden, and if you actively prevent the other parent from doing so, that will not bode well with the court, and may result in the court granting the other parent additional time to bond with the child, unless the limitation is for the child's safety. The court typically is far more comfortable defining a border set of behaviors as safe, than a parent might be, so keep in mind that what you consider to be not safe, or not ideal, may not satisfy the court's definition.
In summary, the best thing is to try and work with the other parent to develop a status quo that works well for you. If that is not possible, then you may need to file a motion asking the court to address the issue sooner rather than later.
If you have any questions about your custody matter, please contact our office to schedule a one hour paid consultation.