divorce360.com | Legal Notes: Who Gets the Children?

Q: What should we do about the children? What will happen to the children? Who will get the children? These are questions that always come up in divorce. What are the answers?

A: Under the law, the court considers two issues -- legal custody and physical custody. The court must base its decision on what is in the best interest of the children. What each parent wants will be considered by the court. However, parental preferences will not control the court's decision. There are different types of custody that will be addressed in a divorce:

Joint legal custody:
This means that both parents share the responsibility to make decisions regarding the child's health, education and welfare.

Sole legal custody:
This means that one parent has primary control over decisions regarding the child's health, education and welfare.

Physical custody:
This measures the amount of time that the children spend with each parent.

Joint physical custody:
This means each parent has "significant periods" of physical custody. Physical custody must be shared in such a way as to assure the child "frequent and continuing contact with both parents."

Primary physical custody:
This means that the children will spend most of their time under the care of one parent, while enjoying visitation with the other parent.

Joint legal custody with one parent having primary physical custody:
In this case, the parents share decision-making responsibility, but the child resides with only one of the parents.

When issuing child custody and visitation orders, courts consider two things:
1. The court's primary concern is to assure the children's health, safety and welfare.
2. The custody/visitation award must assure that children have frequent and continuing contact with both parents after the parents have ended their relationship and encourage parents to share the rights and responsibilities of child rearing.

Where there is no threat of child endangerment, the two issues are considered equally. If there is evidence of domestic violence that could jeopardize the child's safety, a custody or visitation order "shall be made in a manner" that ensures the child's health, safety and welfare and the safety of all family members.

John Harding is a family law attorney who practices in Northern California. His web site can be viewed at Hardinglaw.com. He can be reached a jharding@hardinglaw.com.

Legal Notes: Who Gets the Children?

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