Physical Custody
Pursuant to Family Code §§ 3011, 3020, 3040, 3041 and case law such as Montenegro v. Diaz, the overarching consideration in adjudicating contested custody is the child's “best interest.” However, Fam.C. § 3020 and Fam.C. § 3011 serve as the two policy directives and certain statutory factors that must be considered. Even so, the best interest determination is left largely to the trial court's discretion.
Custody orders include, sole physical custody orders. This means a parent may be granted exclusive physical custody without exclusive legal custody.This means the child resides with and is supervised by one parent, subject to the other parent's visitation rights; but the
custodial parent does not have sole decision-making power regarding other matters affecting the child.
Fam.C. §§ 3011, 3020 and 3004, a joint physical custody award 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,” but that does not mean the child's time must be equally divided with each parent (i.e., one parent can still be the “primary caretaker”).
Essentially, as stated in Fam.C. § 3020 the court's primary concern is to assure the child's health, safety and welfare. This codified policy is a companion to the Legislature's express finding and declaration that the perpetration of child abuse or domestic violence in a household
where a child resides is detrimental to the child.
Further, Fam.C. § 3011 sets forth that an appropriate custody/visitation award must take into account the codified policy “to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy” ... except
where the contact would not be in the child's best interest.
Custody orders include, sole physical custody orders. This means a parent may be granted exclusive physical custody without exclusive legal custody.This means the child resides with and is supervised by one parent, subject to the other parent's visitation rights; but the
custodial parent does not have sole decision-making power regarding other matters affecting the child.
Fam.C. §§ 3011, 3020 and 3004, a joint physical custody award 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,” but that does not mean the child's time must be equally divided with each parent (i.e., one parent can still be the “primary caretaker”).
Essentially, as stated in Fam.C. § 3020 the court's primary concern is to assure the child's health, safety and welfare. This codified policy is a companion to the Legislature's express finding and declaration that the perpetration of child abuse or domestic violence in a household
where a child resides is detrimental to the child.
Further, Fam.C. § 3011 sets forth that an appropriate custody/visitation award must take into account the codified policy “to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy” ... except
where the contact would not be in the child's best interest.