Should I Ask for Joint or Sole Legal Custody?

What is legal custody?

In California, “legal custody” refers to a parent’s ability to make important decisions on behalf of the children, such as those regarding the children’s health, education, and general welfare. (Fam. C. § 3006.) A parent who has sole legal custody does not need to consult the other parent when making decisions about the children’s school or childcare; religious activities; healthcare; sports or extracurricular activities; or vacations and travel. In contrast, if parents share joint legal custody, they must consult with each other before making decisions regarding the above subjects (except in the case of an emergency medical situation).

When does the court award one parent sole legal custody (as opposed to joint legal custody)?

There is not a presumption for sole or joint legal custody in California. Instead, the court has “the widest discretion to choose a parenting plan in the best interest of the child.” (Fam. C. § 3040(c).) <Cross link to C&M Shared Parenting blog> When making awards of custody, the court must consider which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent. (Fam. C. § 3040(a)(1).) Further, under Family Code section 3011, the court must consider a number of factors, including:

1.The children’s health, safety and welfare. (Fam. C. § 3011(a).)

2.History of abuse. The court must also consider any history of abuse by one parent against: (a) a child, (b) the other parent, (c) a parent, current spouse, or cohabitant, of the parent seeking custody, or a person with who m the parent has a dating relationship. (Fam. C. § 3011(b).) Further, according to Family Code section 3044, if the court finds that a parent seeking custody of the children has committed domestic violence against the other parent, the child, or the child’s siblings within the past five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody to that parent is detrimental to the best interest of the child.

3.The nature and amount of contact with both parents. The court must also consider the amount of contact the children have had with each parent. (Fam. C. § 3011(c).) For example, if one parent has a history of abandoning the children for extended periods, this would not be in the children’s best interests. This consideration also overlaps with the children’s interest in continuity and stability.

4.Drug or Alcohol Abuse. The court must consider the habitual or continual illegal use of controlled substances, alcohol or prescribed controlled substances by either parent. Such use of controlled substances could detrimentally affect the children’s best interest. (Fam. C. § 3011(d).)

5.The children’s wishes. The court must also consider and give due weight to the children’s wishes if they are of “sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation.” (Fam. C. § 3042; Fam. C. § 3030(c)(1).) Children who are at least 14 years of age who wish to address the court about custody and visitation must be able to do so unless the court decides such actions would not be in their best interests.

As outlined above, the court reviews multiple factors when making custody decisions. In order to evaluate what custody arrangement would be in your children’s best interest, contact Cage & Miles, LLP today. We offer a complementary 30-minute consultation with an associate attorney or paid consultation with one of the partners.

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