How Child Custody is Determined in California

How Child Custody is Determined in California

Child custody laws in California involve two types of custody – legal and physical. Legal custody refers to which parent is given the rights and responsibilities to make the important decisions about the child.  Examples include choices about education, or the child’s health and welfare.  Physical custody deals with which parent the child resides with.

One of the first factors to be considered is how a judge, or mediator, might look at child custody based on your particular situation.  When sole custody, be it legal or physical, is awarded there are generally specific circumstances that warrant it. Typically, the courts favor joint custody encouraging both parents to take an active role in the raising of their children but that is not always the best decision.

Joint legal custody is more common than joint physical custody.  Depending on the daily routine of a family it may make sense for one parent to have sole physical custody with visitation awarded to the other parent.  Custody issues can be among the more complex that a couple faces in a divorce.

If parents cannot agree on custody issues, they are determined by the courts or in mediation. The first consideration of the courts, and even in a mediated divorce, is always what is in the best interest of the child.

Some of the factors considered prior to awarding custody include:

  • The ties to each parent and the ability of each parent to care for the child.
  • The health and age of the child.
  • The child’s connections to their school, home, and community.
  • A history of substance or physical abuse.

Do Courts Have a Preference for Mothers or Fathers?

As way of background, custody cannot be denied due to the religion, lifestyle or sexual orientation of either parent. And physical disability cannot be considered as grounds when determining custody.

In California, court cases about child custody cannot show a predilection to one parent or the other. Again, custody decisions are based on the best interest of the child. In some instances, custody is awarded to the mother, since often mothers are the primary caretakers. However, this trend has changed and it is more common to see joint legal custody and sole physical custody.  Custody issues can still present significant challenges for the father, but it should be noted that there are many instances when the father is awarded custody. And now more than recent years it is more common for the parents to share joint custody.


As mentioned, sexual orientation cannot be a factor when determining custody. The court system is now well versed in dealing with custody cases with one or both LGBTQ parents. The same rules about custody apply in these cases. At Buncher Family Law, our attorneys are experienced in handling all types of custody issues.

How to Start

Many individuals struggle with where and how to get started. Scheduling a Clear Legal Strategy meeting can be a great start. As child custody issues are often the crux of many divorce disputes and present some of the more complex issues a couple will face in divorce, it is highly advised that you consult with an attorney to better understand how the law applies to your specific goals.

Posted in Child Custody, Family law tips.