One of the most common questions San Jose divorce lawyers receive is how the courts determine custody arrangements for parents of minor children. Although each case is unique, there are some general guidelines you should be aware of.
Physical custody refers to the right to have a child live with you, while legal custody refers to the right to make decisions about medical care, schooling, religious education, and other important parenting issues. Parents who share physical custody often share legal custody, but parents who share legal custody may or may not share physical custody of their children.
In most cases, courts prefer to award joint physical and legal custody after divorce. Unless one parent is deemed to be unfit or abusive, the courts believe it is best for children to have both parents actively involved in their lives. Even when one parent is awarded sole physical custody, the other parent will likely receive some form of visitation to allow him or her to continue to be involved in the children’s lives. (If there are questions as to whether the parent is a suitable caretaker for the children, the court can order that visitation be supervised by a social worker or other trained professional.)
The main issue to consider when discussing joint physical and joint legal custody is consistency. These types of arrangements are only effective if both parents can agree to be civil and respectful of their ex-spouse’s thoughts and feelings. For example, it would be inappropriate to buy your son a BB gun for his birthday if you know that your ex is adamantly opposed to violent toys of any form. On a similar note, letting your 15-year-old daughter go to the movies unsupervised with a boy from school would be inappropriate if you had previously agreed that she would not be allowed to date until she was 16. Moving back and forth between two homes can be very stressful for children of divorce, so it’s your responsibility as a parent to help make sure both homes have the same level of consistency and supervision.
It is a common misconception that older children are allowed to choose which parent they want to live with after a divorce. Teenagers may be allowed to testify as to their preferred living arrangements, but ultimately custody decisions will be left up to the judge. If you have questions as to the possible impact of your child’s preferences on the custody arrangements, ask to discuss this issue with your San Jose divorce lawyer.