Child Custody: The Variations of Legal & Physical Custody


It is important for you to recognize that in Family Law proceedings, the Court is concerned with the best interests of the children and, absent exceptional circumstances, assumes that frequent contact with both parents is advantageous to the children. You may want to speak with me from time to time regarding any conflicts or difficulties encountered between you and your spouse. In the meanwhile, it is important to note that under certain circumstances, removal of the children from the State of California (even temporarily) may be considered a felony under CCP Section 412.21(a) (1) or other provisions of law.

You and your spouse can decide with whom your child(ren) will live (i.e., physical custody) and which of you will make the major decisions concerning their upbringing (i.e., legal custody). The law provides a number of alternatives in that regard:

  • "Joint Custody"-- Joint physical custody and legal custody.
  • "Joint Legal Custody" Both parents will equally share in the right and responsibility to make the decisions relating to the health, education and welfare of the child(ren). Both parents also share all legal responsibility for the child(ren).
  • "Joint Physical Custody" – Each parent will have significant periods of physical custody. Physical custody must be shared by the parents in such a way as to assure the child(ren) of frequent and continuing contact with both parents.
  • "Sole Legal Custody" – One parent will have the right and responsibility to make the decisions relating to the health, education and welfare of the child(ren). One parent also has all legal responsibility for the child(ren).
  • "Sole Physical Custody" – The child(ren) resides with and under the supervision of one parent, subject to the power of the Court to order visitation to the other parent.

There are many variations of time sharing schedules which the parties can utilize to share the physical custody of their children. We will discuss with each client the type of plan which we feel is appropriate in light of the needs of the child(ren) involved.

If you and your spouse cannot agree on the physical and legal custody of your child(ren), the Court will make the necessary decisions and enter an Order in that regard. The Court does not automatically give custody of the child(ren) to the mother. Instead, the Court must decide which parent will best serve the best interests of the child(ren).

It is important that you keep in mind several issues regarding child custody and visitation as your case goes forward. Until there is a formal order from the Court on child custody and visitation, it is important that you document all contact between you and the children. This includes phone contact, visitation, requests for visitation, and missed visitation. Please immediately begin to keep a formal journal (such as a notebook) with dates and times of all contact. It is very important that you stay organized and maintain complete records so that you can provide accurate information regarding time-share and visitation in the future.

Similarly, once there is a court order in place it is important that you maintain records of any missed visitation or other problems that may arise with regards to custody and visitation. A detailed journal will be especially helpful in the event that there is any need to modify custody or visitation in the future.

Also note, under newly enacted Penal Code Section 12035 if a person is injured as a result of you storing a loaded gun to which a child gained access, you could be charged with a felony. Therefore, neither you nor any of your family members should store a loaded gun.

While very rare, it is important that you consider the possibility that your spouse may hire a private investigator to monitor your interactions with the children. Please keep this in mind when you are exercising visitation in public places and conduct yourself accordingly. If you wish to discuss this issue further, please contact me.

Our law office is located in Santa Clarita, serving communities in Saugus, Canyon Country, Valencia, Newhall, and more. If you have any questions regarding divorce, spousal support, child support, questions about modifying a child support order, or if you need assistance establishing or modifying custody orders, please call family law attorney Eric Martinelli with the Martinelli Law Group for a free consultation.