The Elements of Child Custody in a Divorce

The Elements of Child Custody in a Divorce

Pierre Domercq Child Custody and Visitation

The term “child custody” is often used by parties going through a divorce here in North County San Diego. What are the elements of child custody in a divorce case here in North County?

Physical Custody and Legal Custody

There are two separate forms of custody when it comes to a child or children in divorce cases: physical custody and legal custody. Physical custody refers to the party or parties with whom the child will live. There are two types of physical custody: sole and joint. Sole physical custody means the child will only reside with one of the parents. This may apply in cases when the parents do not live close to one another, issues such as domestic violence or drug or alcohol addiction exist, or when there is some other reason that is in the best interests of the child.

Joint physical custody generally means that the child will enjoy “continuing and frequent contact” with both parents. In many cases, this will manifest in a 50/50 split of time at each parent’s home. The proximity of the parents of a child after divorce to one another can affect physical custody, as the goal is usually for the child to continue their normal patterns of life associated with school, and things such as extra-curricular activities.

Legal custody is another of the elements of child custody in a divorce.  Legal custody is concerned with the ability to make decisions on behalf of the child relating to health care, education and the welfare of the child. Just as the case with physical custody, legal custody can either be “sole” or “joint.” The Court will usually award joint legal custody when the parents have shown the capacity to co-parent and work together, and when both are in regular contact with the child.

In cases where the parties cannot come to agreement on custody, or when one of the parties has relocated or abandoned the child the Court may order “sole legal custody.” Sole legal custody is ordered in many cases involving domestic violence, criminal activity or addictive behaviors.

This may also be the case when the parents are fighting over every issue, and simply cannot come agreement. If the parents are arguing over everything from religion to school, health and activities the Court may be forced to give sole legal custody to one of the parents.

In all cases these decisions are governed by what is in the best interest of the child. The experienced child custody, visitation and parenting time attorneys at Burke and Domercq work to protect the interests and goals of our clients, and in most cases these issues can ultimately be negotiated by the parties and approved by the Judge or Magistrate.

If you are involved in a contentious child custody issue, we invite you to contact us or call and schedule an appointment with one of our attorneys at 760-712-3741.  Learn more about the elements of child custody in a divorce and how they may affect your case.