When a divorce involves minor children, there are two custody “labels” that need to be determined: legal custody and physical custody. If the parents can agree on the labels themselves, the court won’t need to decide for them.
Physical custody refers to the time periods during which a child resides with, and is under the supervision of, a parent or other party. It can either be “joint” or “sole.” “Joint” means that each parent has significant periods of physical custody. “Sole” means that the child resides with and is under the primary supervision of one parent, subject to court-ordered visitation by the other parent. The label has no implication as regards the quality of parenting; it simply reflects the residence and supervision.
If a court has to decide physical custody, it will do so based primarily on the timeshare the parents have with the children. “Joint” doesn’t mean the parents have an equal or even an approximately equal share of time with the children. If the timeshare of the parent having less time with the children is 45% or more, the judge will likely order joint physical custody. If this parent’s timeshare is less than 30%, the judge will likely order sole physical custody with the other parent. Between 30% and 45% can go either way with perhaps a leaning towards joint physical custody. Few parents like to hear that they only have “visitation” while the other parent has sole physical custody of the children.
If the parents share both joint legal custody and joint physical custody, this is sometimes called simply “joint custody.” California law has a presumption that joint custody is in the best interests of the children when the parents have agreed to it. It is now the most popular custody arrangement. It explicitly acknowledges the wide-ranging importance of both parents in raising their children.
Sometimes the term “primary custody” is used but it has no legal meaning. It may be used to designate the primary home when the parents share joint physical custody. Only the parent who provides the primary home for the children (where they reside and are supervised more than 50% of the time) can apply for government assistance for the children.
Does Physical Custody Matter?
Divorcing couples are free to come up whatever parenting plan and timeshare arrangements they can agree upon, regardless of whether the physical custody label is “joint” or “sole.” The parenting plan itself is normally much more important than the custody labels. The custody labels are best (and normally) decided (often as a formality) after the parenting plan has been developed.
As noted above, a parent who needs or wants to apply for governments benefits for the children must have either sole physical custody or primary custody within joint custody.
The other main area in which the label may have importance is in move-away situations. This will be covered in a separate post.
Once physical custody has been established as part of a final divorce order, it can be changed if the parents agree and notify the court. If however they can’t agree, a parent requesting such a change from the court must show that there has been a significant change of circumstances affecting the children, before the court will consider the merits of the request.