Physical custody refers to where a child will live after parents divorce or separate. Physical custody is different than legal custody, which has to do with decisionmaking for children. The parent with physical custody has the right to have the child physically present in the home. If a child lives exclusively or primarily with one parent, that parent may be referred to as the custodial parent, having sole physical custody or primary physical custody. The other parent would be considered the non-custodial parent and would typically have visitation rights. If a child’s time is divided equally between the parents, or close to equally, the parents are sharing joint physical custody.
Joint Physical Custody
According to California Family Code section 3004, “’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.”
Sole Physical Custody
According to California Family Code section 3007, “’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.”
Primary Physical Custody
In some joint physical custody arrangements, a parent who has more time with the child may be deemed to have primary physical custody, while the other parent has secondary physical custody. In other words, the term “primary physical custody” is often used in cases where parents are awarded joint physical custody and one parent has slightly more time than the other. However, in California, the term “primary physical custody” doesn’t exist in the Family Code, so there is no language to define its legal meaning. This can become an issue when a court identifies one parent as having “primary physical custody” and the other “secondary physical custody,” particularly in moveaway cases, where the parent with primary physical custody seeks permission from the court to relocate with the child.
Under the new Court Rules, as part of a request for temporary orders these factors will be presented at a live hearing in open court where witnesses are called and cross examined, unless the parties agree otherwise. These hearings can take place very early in a custody case and they can establish a pattern of custody which may become the permanent order of the Court at a later Trial. Presenting a strong case at a temporary hearing is important to assure that the best interests of your child or children are truly protected.
Preparing for your initial hearing and developing a long term strategy which you begin to implement from the beginning of the case are important to start your case off in the right direction. If your case has already started in a less than satisfactory way, steps can be taken to modify current orders and evidence regarding the basis for modifying custody can also be presented at a live hearing in open court.