2.    What is the difference between "legal custody" and "physical custody"?    Legal custody includes the control of your child's education, health and well-being, and any other major decisions that effect the child's life. Examples include deciding which school your child should attend, which doctor and dentist the child goes to, or when to get braces; choosing how to treat your child's injuries, diseases; and determining the child's religious upbringing. These are all part of legal custody. In almost all (but severe cases) a child's father and mother will share "joint" legal custody. The law strongly favors the proposition that both parents have equal rights to be involved in all of these types of decisions regarding their child.

 

            Physical custody determines where the child resides and the amount of time, if any, your child spends with each parent. It is important to understand that both parties have equal rights to custody and visitation. Child psychologists generally agree that a child's physical and emotional best interest is "frequent and constant contact with both parents." In the case of multiple minor children, custody of all children is usually awarded to one parent instead of breaking up the children. However, the court has the authority to place the children in different homes if the situation warrants doing so.

 

            Children normally are not given a choice regarding which parent will have primary physical custody. In some cases, however, children who have reached an age where they can make a reasoned choice are permitted to state a preference. The stated preference is not binding on the judge, as the Court must still act in the child's best interests, regardless of the child's wishes.

 

            When custody is an issue, California courts require parents to go through a court approved mediation, before litigation, to minimize the traumatic impact on all involved, especially the children. If the parents can not reach an agreement regarding custody, and if the evidence is incomplete, unclear, or contradictory, then it is not uncommon for a psychologist to be appointed to help assist the Court in making an informed decision on the child's proper placement. The evaluator — usually a highly-trained and experienced specialist in such matters — attempts to determine if one parent falls outside the bounds of "normalcy." If both parents are found to be "normal," the evaluator will advise the Court as to which parent will provide the most beneficial environment for the children. Occasionally, when the children's interests are divergent from the parents' interests, the Court may also appoint independent counsel to represent the minor children.   (Click to return to Question #2.)