The Difference Between Physical and Legal Custody

Physical custody refers to the parent, parents or grandparent(s) who have the physical responsibility for the care of the child. Joint physical custody means that each of the parents shall have significant periods of physical custody, although parents can share joint custody even if the timeshares are disproportionate, such as an alternate weekend schedule for one parent and the other parent having the rest of the time. Sole legal custody means that one of the parents has the child(ren) the majority of the time as well as all of the responsibilities of raising that child.

Legal Custody refers to the parent(s) who will have the decision-making authority relating to all aspects of the child(ren)'s life. Joint legal custody means that both parents have the authority to make decisions regarding the child's education, health and welfare, religion, when the child(ren) get a driver's license, etc.

A party may seek to join nonparty who has custody/visitation interest of minor children of marriage. Joinder is mandatory in filing grandparent, stepparent, and defacto custody action. The third party who is seeking custody or visitation may apply to court for an order joining themselves as party to the proceeding. A third party served with restraining order re: property or children may also apply to court for an order joining themselves as party to the proceeding. California Rules of Court, rule 1252. Prospective adoptive parents are parties subject to compulsory joinder in custody action between natural parents. However, failure to join them is not reversible when they had knowledge and failed to intervene. Jermstad v. McNelis (1989) 210 Cal. App. 3d 528, 258 Cal. Rptr. 519.

A report of child abuse could result in a loss of custody to the accused parent. It could also shift jurisdiction to the dependency court. The client may need to retain counsel specializing in this area of law.

The Expense of Custody Litigation

Custody litigation subjects a client to close scrutiny. This is the one area where "fault" becomes fair game. A client's actions and words will be reviewed and judged. Such a battle is time consuming and the litigation is usually quite lengthy.

Custody litigation is expensive. Significant attorneys' fees are incurred preparing your client on how to deal with the other party, how to deal with the evaluator, how to deal with the Judge. Speaking to witnesses and preparing declarations takes time. The psychological evaluation is also expensive.