J.D. Harvard Law School ‘73
M.A. Columbia University
B.A. Yale University
Mediator, Judge Pro-Tem
Certified Family Law Specialist
licensed by the State Bar of California
Stan is a member of the
San Diego North County Bar Association.
Licensed to practice in California, Maryland, Washington D.C., & Georgia
There are two kinds of child custody and two ways to allocate them between parents. The first kind of custody is legal. The second is physical. The first way to allocate child custody is to award it to one parent. This is called sole custody. The second way is to award it to both parents. This is called joint custody. Joint child custody is defined as joint physical custody and joint legal custody.
Sole legal custody means that one parent, and only one, has the right and responsibility to make the decisions relating to the health, education, and welfare of a child. Sole legal custody is unusual. First, it is contrary to the recognized right and responsibility of each parent to parent his or her child. The State believes your child needs you, and the State wants you involved with raising your child. Second, most parents - happily enough - are not threats to the safety, health, and well being of their children. For one parent to have sole legal custody, the other parent must be physically and emotionally abusive, addicted, mentally ill, thoroughly irresponsible, or in jail, to name a few examples.
Sole physical custody means that a child resides with and is under the supervision of one parent.
If one parent has sole physical custody, the other parent has visitation. Ordinarily the factors that result in an award of sole legal custody to one parent result in an award of sole physical custody as well.
Joint legal custody means that both parents share the right and responsibility to make the decisions relating to the health, education, and welfare of the child.
Joint physical custody means that each of the parents has significant periods of physical custody, and that they share physical custody in a way that assures the child frequent and continuing contact with both parents.
Joint legal custody and sole physical custody are not necessarily inconsistent. For example, divorced parents often live far away from each other, making frequent and continuing physical contact impossible for both. In such cases the child might live with one parent eleven months of the year. That parent would have sole physical custody, and the other parent would have visitation. However, they will probably have joint legal custody if the factors normally resulting in sole legal custody are not present
Joint custody is normally awarded. In the order of preference set forth in the Family Code, it is in first place. That still leaves open the question of how much time the child spends with each parent, referred to as the time share. The time share percentage is used to calculate child support, along with the parties’ incomes. Although some parents easily reach agreement on a time share schedule without much formality, time share is usually a contentious issue. The usual joint custody order is therefore quite detailed.
The detailed time share recommendations of Family Court Services mediators in contested matters are also useful guides for negotiating and preparing timeshare schedules in uncontested matters. The time share schedule will be part of the court’s custody order in either case. As your child custody attorney we can help you negotiate custody and a time share schedule that works for you if you and your child’s other parent are agreeable. We can go to court with you and argue for the adoption of Family Court Services recommendations that are favorable to you and rejection of those which are not.
Although child custody often degenerates into warfare, it doesn’t have to. And although support often becomes a four letter word, it doesn’t have to either Let’s take a look at how you can deal with child custody successfully to avoid huge arguments, and how you can end those arguments if they are unavoidable. As we’ve explained elsewhere, you can’t resolve child support until you’ve resolved custody, so we’ll take custody first.
Once they start, virtually all divorce cases end with divorce rather than reconciliation. Even though one party may prefer reconciliation, realistically it’s not going to happen. In order to achieve child custody success, we think it is extremely important for you to accept your divorce. Trying to punish your soon to be ex-spouse or wallowing in despair will stand in the way of what should be your ultimate goal - starting your new life successfully. We will do our best to help you understand this and act on it.
Now look at the kids. They are starting new lives too. If you can’t get yours up and running without losing your temper and falling apart, how are they going to handle their own challenges? And then there’s the law and the judge. In this area, neither of them cares about you. Instead they care about the kids. The law says that children’s issues must be decided in the best interests of the child, not yours. That’s what judges try to do, despite the possibility that their decisions disappoint or upset you. We will do our best to help you cope with this.
What if your soon to be ex-spouse is not getting the same advice or is refusing to take it? “Don’t feed the fire” is the first rule here. Some people are chronically late, so you already know they’ll be late picking up the kids or bringing them back. They’re not going to change, so don’t harp on it. You already know they’re not going to discipline the kids the way you would. Don’t expect that to change either, and when it doesn’t, don’t go bananas. Going bananas does not help the kids. It hurts them. It doesn’t do you any good either. There are strategies for dealing with these problems, and we will help you make them work
Then there’s the boyfriend or girlfriend. You don’t have any legal right to dictate or interfere - you’ve separated and you’re getting divorced. Jealousy and anger may be natural, but now they’re totally out of place. And you’re not going to lose the kids as long as you don’t drive them away or abandon them. Remember, you’re stuck with your ex until the kids are 18. We can help you devise ways to deal with this new fact of life.
How about more serious problems, like violence or drugs? Staying calm is still a good place to start. The judge has tools to deal with these. We know what they are, and we know how to convince the judge to use them. Supervised visitation may be appropriate in some instances, but it must be handled carefully. The object is protecting your child and improving the parenting capabilities of the supervised parent, not grinding him or her into dust.We view psychological evaluations as a last resort. They are expensive and intrusive, they may take months to perform, they are often inconclusive, and they give control of your lives and the lives of your children to a stranger.
Child custody lawyer Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.