California's State Laws on Primary Custody

by Wayne Thomas
The primary custodian is the parent with the most child contact in joint custody arrangements.

The primary custodian is the parent with the most child contact in joint custody arrangements.

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Custody matters can be a source of tension between parents throughout the divorce process. Although a parent may believe that fairness dictates an even division of contact with children, custody arrangements are rarely 50-50 in California. Instead, a court will take into account both practical considerations and what is in the best interests of the child when allocating parental rights. The parent with the most contact is typically referred to as the primary custodian, a designation that can also play a role in child support calculations.

Physical and Legal Custody

Custody is divided into two components in California, legal custody and physical custody. Legal custody refers to a parent's authority to make major decisions, such as where the child attends school, consent to medical treatment and religious affiliation. By contrast, physical custody refers to where the child stays overnight. Some day-to-day decision-making is naturally part of physical custody, including what food the child eats and what clothes she wears. Both physical custody and legal custody can be awarded solely to one parent or shared between the parents.

Factors Considered

In California, judges will typically order joint legal custody unless it can be shown that a parent is not in a position to make decisions that further the best interests of the child. A court might be persuaded to deny a shared legal custody arrangement based on poor personal decisions by one parent, such as habitual drug use or a complete absence from the child's life. When it comes to physical custody, the state favors frequent and continuing contact with both parents and a sharing of parental responsibilities, unless it can be shown that this would not be in the best interests of the child. State law outlines several factors a judge may consider, including the ability of each parent to care for the needs of the child, whether either parent has a history of domestic violence and any substantiated evidence of substance abuse.

Allocating Time

Once a court has determined that shared physical custody is in the child's best interest, contact time must be allotted to each parent. This can be done by agreement of the parents or by the court if the parties cannot agree. Promoting stability in the child's life and avoiding disruption are the primary concerns of the court. Practical considerations, such as transportation, also come into play. For example, if the father lives in the former marital home across from the child's school and the mother lives an hour out of town, to promote stability in the child's life, a judge might conclude that the father should have primary custody. He could award contact to the father in the form of overnights every Monday through Thursday. This arrangement still provides the mother with substantial contact with the children during her three-night weekends, and could be viewed as the best option for minimizing disruption during the week.

Support Issues

The amount of time that a child spends with each parent is one factor taken into consideration in determining the amount of child support obligation in California. In basic terms, support is calculated by combining the incomes of both parents to produce a total household income. This amount is used to calculate the total support obligation to be shared between the parents based on the number of children. Support is apportioned between the parents according to their relative incomes. The parent ordered to pay support is responsible for an amount in the same proportion as his income to the combined income. Because California assumes that a custodial parent is supporting the child, the amount of support will be adjusted to reflect the time the child spends with the non-primary custodian. For example, assume that the parents' incomes are exactly the same. If the total support obligation is $1,000 per month, and the father and mother have custody 40 and 60 percent of the time, respectively, the father would be responsible for paying the 10 percent difference, or $100 per month.