If you’re involved in a California family law case of any kind where there are minor children present, there’s a good chance you’ve heard of terms such as “joint legal custody”, “joint physical custody”, etc. Terms like these are not difficult to understand, but many terms in court are used so frequently that lawyers, judges, etc. will assume their meaning is obvious. This is especially true in family court where, at least in my experience, most people are unfamiliar with the laws and procedures that are used. A huge amount of unnecessary confusion results, which is obviously not helpful to anyone getting a good outcome.
In this post, therefore, I’m going to define these terms, tell you what statute sections they come from, and any practical commentary that pops to mind.
Joint Legal Custody (CA Family Code Section 3003)
For whatever reason, California’s Family Code doesn’t define “legal custody” or “physical custody”, but rather defines those terms with the modifier of “joint” or “sole” instead. Joint Legal Custody is defined in Section 3003 of the California Family Code as:
“’Joint legal custody’ means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.”
I’ve bolded and underlined the terms “health, education, and welfare” because that’s fundamentally what legal custody is all about. When it comes to minor children (again, this is a child under age 18 typically), imagine something that the parent would have to give permission or authorization for regarding that child. This might be, for instance, a permission slip for the child to go on a school field trip. This same idea applies, of course, to anything medical (e.g. surgery) that the child has to have done.
I’ve also bolded and underlined the word “share” to emphasize that Section 3003 refers to “joint legal custody”. It’s important to note here that the word “joint” does not necessarily mean that the sharing is equal. In my experience, “joint legal custody” practically-speaking is usually shared equally where neither parent can overrule the other in the event of a disagreement.
To round out my explanation on legal custody, I’ll also mention that “sole legal custody” is defined in Section 3006 of California’s Family Code. That section states:
“‘Sole legal custody’ means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.”
As you can see, the “health, education, and welfare” part is the same, but the custody is now exercised by only one of the parents.
Joint Physical Custody (CA Family Code Section 3004)
For physical custody, California’s Family Code also only defines it in terms of “joint physical custody” and “sole physical custody”. Joint physical custody is defined in Section 3004 of the California Family Code as:
“‘Joint physical custody’ means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020.”
I’ve again bolded and underlined the relevant terms. Practically-speaking, physical custody refers to the time that each parent has the child in their physical care. This is, as you might guess, a zero-sum game in that any time the child is with Parent 1 necessarily means that that is time Parent 2 cannot have the child. The child’s parents will generally be the only ones who have physical custody of the child. The child’s school or daycare, for example, does not have physical custody in the family law legal sense when they have the child. The time the child spends in school or daycare counts against the hours of the parent who has them that day. If, for instance, Mom has the child on Mondays and Tuesdays, then the hours the child spends in school or daycare on those days count towards Mom’s time. If Dad has the child Wednesday through Friday, then the daycare or school hours on those days count towards Dad’s time.
I’ve also bolded the terms “frequent and continuing contact” as a reminder that in any custody and visitation case involving minor children, Section 3020 of the California Family Code states that as a matter of policy, California has decided that children will grow up to be happier and more well-adjusted adults if they are able to see both parents frequently and continuously. Even though this is just policy, this “frequent and continuous contact” standard is a law as immutable as gravity when it comes to custody and visitation cases in California. It’s extremely common for one parent to try to use the child as a pawn with threats along the line of “I’ll see to it you never see your son again.” It never works, but the bluster and saber-rattling still occurs and it’s a complete and total waste of time.
Anyway, getting back to “joint physical custody”, the word “share” is not present in the first sentence of Section 3004, but hat first sentence does make it explicit that physical custody is something that each parent “shall” have.
To complete the explanation of physical custody, I’ll mention that “sole physical custody” is defined in Section 3007 of California’s Family Code, which states the following:
“’Sole physical custody’ means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.”
As you would hopefully guess, “sole physical custody” is only exercised or held by one parent. Of note as well is the clause at the end stating that sole physical custody is subject to the power of the court to order visitation. This is Section 3020 again and the “frequent and continuous contact” standard again. There is no absolute right to sole physical custody. It’s always subject to the power of the court to order visitation.
As always, I hope this was helpful. Again, a reminder that all of this is for California only. If you’re in a state that isn’t California, it is entirely possible that your state may have similar laws that have analogous definitions to what I’ve described. You would just have to check for your particular state.
Andy Chen
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