The days, hours, and moments you spend with your child can be the greatest gift in life, even if your relationship with the child’s other parent has come to an end. If you cannot reach an agreement with your former partner about custody, time with your child is worth fighting for. Below is some info to help you navigate child custody issues.
TYPES OF CHILD CUSTODY
“Full custody” is not an actual legal term in California. Parents who say they have or want full custody are usually referring to sole legal and sole physical custody of their children. The available forms of custody are joint legal, joint physical, sole legal, sole physical, and any combination of these. If one parent has sole physical custody, the other is usually still entitled to visitation except in the most extreme cases.
Joint Physical Custody
Contrary to popular belief, joint custody is only presumed to be in the best interests of the child where both parents agree to joint custody (see Family Code 3080). Joint physical custody is nonetheless the default custody arrangement in practice in California. Splitting time 50/50 between both parents is not required, however, for a joint custody arrangement. The judge will determine what custody schedule is in the child’s best interest. Any arrangement where one parent has the kids 35% of the time or more, and the other parent has the kids the rest of the time, is usually considered joint custody.
Custody schedules may change over time, even after your divorce is final, based on the age of your kids and their needs, and your own schedule and circumstances. Below are some common examples of joint custody schedules.
ALTERNATING WEEKS SCHEDULE
With this alternating weeks schedule, parents take turns picking up the kids from school on Fridays to begin their custody week. This is a very low-friction and uncomplicated custody arrangement, particularly during the school year. The downside is that each parent spends a week away from the kids at a time.
2-2-3 SCHEDULE
At the other end of the spectrum, 2-2-3 schedules involve multiple exchanges throughout the week. These schedules can be good for young kids who benefit from frequent contact with both parents, but the constant exchanges can be complicated and create drama. The main idea of the 2-2-3 schedule is to split the work week and give parents alternating weekends with the children. Plenty of apps can help you design and keep up with this schedule. 2-2-3 schedules work best if you live near your child’s other parent and have decent communication.
2-2-5-5 SCHEDULE
2-2-5-5 schedules give kids more frequent time with each parent than every other week schedules, but involve fewer exchanges than 2-2-3 schedules. With 2-2-5-5 schedules, exchanges occur every Wednesday, and, every other week, on Mondays and Fridays. In the above schedule, all exchanges can occur at school pick-up and drop off without contact between the parents when school is in session.
Sole Physical Custody
If one parent has the kids 80% of the time or more, that parent has sole physical custody. The line between sole and joint custody is blurred, but lies somewhere between a time split of 20% and 35% for the non-custodial parent, with the children spending 80% to 65% of their time with the custodial parent. The time split itself rather than the official label of “joint” or “sole” custody determines whether you have joint or sole custody. For example, if a court grants one parent sole physical custody but gives the other parent a visitation schedule of three full days a week with the kids, this is a joint custody arrangement despite the label of sole physical custody.
Visitation schedules range from near joint custody to hardly any contact with the non-custodial parent. The parent without sole physical custody can still have overnight visits with the kids under some sole custody arrangements. Or, children can spend 98% of their time with the custodial parent and only have supervised or even Zoom visits with the other parent. Below are some examples of schedules where one parent has sole physical custody, though the second schedule would likely be considered joint physical custody.
ALTERNATING WEEKENDS
This custody and visitation schedule has the kids with the custodial parent a little over 80% of the time and a little under 20% of the time with the non-custodial parent. It is common with an alternating-weekends schedule to include a mid-week visit from around 3pm-7pm, which would change the time split to almost exactly 80/20.
1st, 3rd, and 5th WEEKENDS WITH MIDWEEK OVERNIGHT
Parents may choose a 1st, 3rd, & 5th weekend schedule to make planning easier. They can easily remember which weekends of the month they will have the kids. This arrangement also gives a few more weekends a year to the non-custodial parent.
The above schedule shows how a visitation schedule in a sole custody arrangement can turn into joint physical custody. Here, overnight visits are included every other week. This actually brings the custody share to approximately 68/32, with the non-custodial parent having the kids almost 1/3 of the time. This may be considered joint rather than sole physical custody.
Joint Legal Custody
Joint legal custody grants both parents an equal right to make decisions about their kids’ health, education, and general well being. Joint legal custody does NOT mean that parents have to text each other about every decision affecting their children. Joint decision making is usually required for “big” decisions only, such as where the child will attend school or whether the child should attend therapy.
Legal custody orders can contain detailed guidelines for when the parents must notify each other, for example, when taking their child to the emergency room, or when they must obtain the other parent’s consent, like deciding to start the child on prescribed psychoactive medication. Typically, during your custody time, you can make all normal day-to-day decisions affecting your child without consulting with the other parent, such as signing up your kids for (most) extracurricular activities that do not interfere with the other parent’s custodial time.
Sole legal custody
Sole legal custody can be granted to one parent even if both parents share joint physical custody. Sole legal custody can also be granted for certain decisions but not others. For example, if the child has a disability and one parent has been much more involved in medical appointments throughout the child’s life, granting sole legal custody over medical decisions to the more involved parent may be best, but both parents still share joint legal custody over education decisions. Sole legal custody does not affect small decisions that come up during your custody or visitation time. For example, the parent without legal custody is not required to ask the other parent’s permission to keep the child home from school if the child has a fever. But for bigger decisions, like transferring schools, the parent with sole legal custody decides.
Final Decision-Making or Tie-Breaking Authority
Courts may award joint custody with final decision-making authority to one parent for all or only some categories of decisions. This requires the parents to consult with each other regarding important decisions affecting their child, but if the parents reach an impasse, the parent with tie-breaking authority has the final say. Judges will often grant this in cases where parents have repeatedly returned to court when they cannot agree on decisions affecting their child. The court typically sides with the parent who appears to be most willing to compromise, or who is following the advice of the child’s doctors, or who otherwise seems to be the most reasonable. The parent with tie-breaking or final decision-making authority cannot make unilateral decisions for the child. The parents still must consult with each other and attempt to reach a joint decision.
HOW TO GET MORE CUSTODY TIME
The best interests of the child is the guiding principle for custody decisions (see Family Code 3040, 3011). To obtain more time with your child, you only need to convince the judge that this change is in the child’s best interest. Factors the court is supposed to consider in reaching this decision include:
- The child’s “health, safety, and welfare”
- History of abuse by either parent or their significant other
- The child’s prior interactions and bond with both parents
- Substance abuse
If the reason you need a change in custody is an emergency, you can file an ex parte request. Otherwise, you will bring these requests by filing an FL-300 form and a declaration and exhibits prepared by your attorney.
Below are some ways to get more time with your kids.
Domestic Violence Restraining Order
If the family court finds that your former partner committed domestic violence against you or your children, a presumption arises AGAINST joint physical or joint legal custody. By law, the court cannot grant joint custody after finding domestic violence occurred unless and until the abusing party convinces the judge that joint custody is in the children’s best interest. Courts refer to this as “overcoming the presumption” against joint custody for domestic violence offenders. Obtaining even a temporary domestic violence restraining order (DVRO or DV-TRO) can result in an immediate grant of sole legal and sole physical custody to you. Learn more about DVROs here.
Show that the Child Needs More Time with You
Many reasons can support a request to modify your current custody arrangement. Maybe your current custody order was made when the children were young and benefited from more time with a “primary” parent, but now the time split should move closer to 50/50. Or perhaps at the time of the original order, you and the other parent lived far apart, so the child needed to be at one parent’s house during the school week, but now that has changed. Or maybe you have a new job, more flexibility, and you want to spend as much time as you can with the kids and that is best for them. If you are the only parent available to help the kids with their homework from 3pm-5pm for example, you may have a good argument to have the kids on more weekdays.
Whatever the reason, if you can convince the judge that spending more time with you will benefit your kids, you can obtain more time. Remember, joint custody is flexible. The schedule and time split should be responsive to what is best for your kids, no based on an arbitrary percentage. An attorney will help you prepare a “declaration” and exhibits demonstrating why your proposed change is in the children’s best interest. If you do not have an attorney, the self-help center can direct you to the forms you need to file to submit this request.
Show that the Child Needs Less Time with the Other Parent
Sometimes joint physical custody or a nearly equal time share is simply not in your kids’ best interest, even if domestic violence is not an issue. Perhaps the other parent is living with untrustworthy people and you are concerned for your child’s safety. Maybe your former partner struggles with substance abuse issues and is not responsible enough to care for the children overnight or even unsupervised. Issues supporting a request for sole custody or an increased time share can be less extreme, such as your child simply having a much closer bond with you and being traumatized by spending so much time away from you. Any argument you can make that the current custody arrangement is detrimental to your child can support a request to get more time or even sole physical custody.
If the reason underlying your request is an emergency, you should file an ex parte request for a modification of your current custody situation. Ex parte requests are more complicated than simple requests for court orders in your family law case. While it is best to have an attorney, you can attempt the process yourself using resources the self-help center provides. If the request is not an emergency but still time-sensitive, you can file a regular request for a court order but also ask for the matter to be heard on a shorter time table.
How to Get Legal Custody
You can share joint custody with your child’s parent and still retain sole legal custody, or vice versa (you can have sole physical custody and share joint legal custody). Sole legal custody may make sense if you are the parent who has always handled the child’s doctor and dental appointments, school registration, and other logistics. Other times, circumstances may arise that justify changing a previous legal custody order. Parents can obtain sole legal custody over all decisions, or only some categories of decisions, as discussed above under “final decision-making or tie-breaking authority.” Below are some of the best approaches to obtain sole legal custody over some or all decisions.
As with changes to physical custody, if the reason you need a change in custody is an emergency, you can file an ex parte request. Otherwise, you will bring these requests by filing an FL-300 form along with a declaration and exhibits prepared by your attorney.
Domestic Violence Restraining Order
Obtaining a DVRO should result in instant sole legal and sole physical custody. The same domestic violence presumption against joint custody discussed above under “How to Get More Custody Time” also applies to legal custody. The presumption against joint custody actually applies whenever a judge finds domestic violence occurred, not just when you obtain a domestic violence restraining order. A DVRO is the typical context, however, where the judge makes that finding. Learn more about DVROs here.
Other Parent Not Consulting with You
If your child’s other parent has made an important unilateral decision for your child, like changing their school without your consent or starting them on ADHD medication without telling you, you have a strong basis to request a change in legal custody. Similarly, if you have been reaching out to the other parent about important decisions but they are refusing to discuss the issues with you, it makes sense to request sole legal custody over some or all decisions affecting your child. A judge will likely find that granting sole legal custody to you is in your child’s best interest where you are being responsible and reasonable about making decisions and trying to work with the other parent, but the other parent is not cooperating.
Poor Co-Parenting Relationship
Family law judges want to minimize drama and this is typically the best for the children. If you and your former partner have returned to court multiple times to ask the judge to make a decision about the kids because you and the other parent cannot agree, the judge may grant “tie-breaking” or final decision-making authority to one parent, or sole legal custody to one parent. The judge typically sides with the parent who is most reasonable. This means most willing to make compromises, most likely to follow the advice of the child’s doctors, teachers, and therapists, and most likely to consider the opinion of the other parent. Other times, the judge may divide legal custody, assigning some categories of decisions to one parent and others to the other parent, such as education to dad and medical to mom.
If you are unsure whether or not you need an attorney or if you have other questions, give us a call for a free consultation.
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