There are two types of custody: legal and physical.  Custody can either be sole (one parent) or joint (shared).  Custody has implications as regards eligibility for public assistance in programs such as CALWORKS.  There are of course other eligibility requirements.

In California, when an application for child-related public assistance is received, the government must determine who is the caretaker/relative of the child.  A caretaker/relative lives with the child and exercises responsibility for the day-to-day care and control of the child.  The government is supposed to review the actual circumstances in each case to determine the child’s caretaker.

Custody

Sometimes one parent is designated as having sole custody, either by agreement or by judicial order.  The sole custody may be both physical and legal or just sole physical custody (with joint legal custody).  The parent with sole physical custody will nearly always be considered the caretaker, with possible eligibility for public assistance.

The situation is less obvious when there is joint custody.

Usually with joint custody, a child alternates periods of time with each divorced or separated parent.  In this case, the caretaker is normally the parent who has the child for the majority of the time.  It is possible for the other parent to be found to be the caretaker.  But it would require a showing that he/she has majority responsibility for the care and control of the child.

Care and Control

The following factors are to be considered when determining responsibility for care and control:

• who decides where the child attends school or child care;
• who deals with the school on educational decisions and problems;
• who controls participation in extracurricular and recreational activities;
• who arranges medical and dental care services;
• who claims the child as a tax dependent;
• who purchases and maintains the child’s clothing.

In a 50/50 joint custody arrangement, the child spends an equal amount of time with each parent.  Presumably each parent also exercises an equal share of care and control responsibilities.  In this situation, the parent who applies for public assistance will be considered the caretaker.  This is true unless the other parent is also currently applying for or receiving public assistance for the child.

What if each parent exercises an equal share of care and control responsibilities, and each has applied for public assistance?  The caretaker determination will be made in the following order:

1. Is there a court order designating one of the parents as the primary caretaker for purposes of public assistance?  If so, this settles the matter.
2. If there is no such court order, the caretaker will be the parent who would be eligible for public assistance.
3. If both parents would be eligible, the parents may have designated a caretaker by their mutual agreement.
4. If there is no such agreement, the caretaker will be the parent who first applied for public assistance.

Court Order Re Public Assistance

Civil Code Section 4600.5(h) states: “In making an order of joint physical custody or joint legal custody, the court may specify one parent as the primary caretaker of the child and one home as the primary home of the child, for the purposes of determining eligibility for public assistance.”

When working out a divorce agreement, perhaps with the assistance of a mediator, you have an opportunity to specify the primary home and the primary caretaker if you would like to do so.  If so, this language will be included in your divorce judgment from the court.