One of the most common things I hear during an initial child custody consultation is:
“I want full custody.”
After nearly three decades practicing family law, my response is usually another question:
“What do you mean by full custody?”
California law does not really use “full custody” as a legal term. What most parents are actually asking for is some combination of sole legal custody, sole physical custody, more parenting time, restricted parenting time for the other parent, or sometimes supervised visitation.
Those are very different requests.
As a practical matter, joint legal custody is the norm in the ordinary California custody case. So if a parent tells me they want “full custody,” I want to understand what is happening that makes the normal arrangement inappropriate for this particular child.
Is there a safety problem?
Are the parents unable to make important medical or educational decisions?
Has one parent essentially disappeared from the child’s life?
Is there domestic violence?
Is the real issue where the child should live?
Or does the parent simply believe that because the other parent has behaved badly toward them, that parent should not have custody?
Before deciding what to ask the court to order, we need to identify the actual problem.
There is no single California custody order called “full custody.”
California separates custody into two basic concepts: legal custody and physical custody.
Legal custody concerns who makes important decisions regarding the child’s health, education and welfare.
Physical custody concerns where the child lives and which parent has responsibility for the child’s day-to-day care and supervision.
A parent can have sole legal custody without having sole physical custody. One parent can also have sole physical custody while the parents continue to share legal custody.
That is why saying “I want full custody” does not tell the court exactly what you are asking for.
We have to be more specific.
Legal custody is about decision-making.
When parents share joint legal custody, both parents share the right and responsibility to make decisions concerning the child’s health, education and welfare.
Those decisions can include issues involving schools, medical treatment, mental health treatment and other significant matters affecting the child.
Legal custody is separate from the parenting schedule.
Parents can share joint legal custody even though the child spends substantially more time living with one parent.
That distinction is one of the first things I explain during many custody consultations.
As a practical matter, joint legal custody is the norm in most California custody cases.
California law does not create an absolute rule requiring joint legal custody. The court still has broad discretion to make the custody orders that are in the child’s best interest.
But in the ordinary case involving two parents who remain involved in their child’s life, courts commonly expect both parents to participate in major decisions concerning the child.
That means obtaining sole legal custody generally requires more than showing that the parents do not get along.
Separated parents disagree.
Sometimes they communicate poorly. Sometimes they strongly dislike one another. Sometimes every conversation between them is difficult.
That does not necessarily mean one parent should be excluded from important decisions concerning the child.
The real question is whether joint decision-making is workable and consistent with the child’s best interest.
Family Code section 3006 defines sole legal custody.
Sole legal custody gives one parent the exclusive right and responsibility to make decisions concerning the child’s health, education and welfare.
That can be a very significant order.
If one parent has sole legal custody, the other parent does not have equal decision-making authority over those matters simply because they continue to have parenting time.
But sole legal custody does not necessarily mean the child never sees the other parent.
That is a physical custody and visitation issue.
There are cases where joint legal custody simply does not work.
Domestic violence can fundamentally change the analysis. Serious safety issues may also be significant.
There are other cases where one parent refuses to participate in decisions, cannot be located, repeatedly interferes with necessary medical or educational decisions, or where the parents’ inability to make decisions together is actually harming the child.
But I would distinguish those cases from ordinary parental conflict.
A parent telling the court:
“We disagree about everything”
is not necessarily the same as demonstrating:
“Our inability to make decisions together is harming our child, and here is the evidence.”
The requested custody order should address the actual problem.
This is something parents sometimes overlook.
The parents may be able to share legal custody generally but have a recurring dispute about one particular subject.
Maybe the problem is education.
Maybe it is mental health treatment.
Maybe it is medical care.
Before asking the court to remove all legal custody authority from one parent, it is worth identifying whether the problem is really that broad.
The appropriate custody order should fit the circumstances.
Family court orders work better when they solve the actual problem rather than simply giving one parent a label that sounds like a victory.
Sole physical custody is different from sole legal custody.
Under Family Code section 3007, sole physical custody means the child resides with and is under the supervision of one parent, subject to the other parent’s visitation rights.
That does not necessarily give the parent with sole physical custody exclusive authority over educational, medical and other major decisions.
For example, the court can award one parent sole physical custody while ordering the parents to continue sharing joint legal custody.
The child primarily lives with one parent, but both parents remain involved in important decision-making.
No.
This is one of the biggest misconceptions surrounding the phrase “full custody.”
Sole physical custody does not automatically terminate the other parent’s parental rights or eliminate visitation.
The court may still order parenting time for the other parent.
Depending upon the circumstances, that could be substantial visitation, a more limited schedule, or supervised visitation where legitimate safety concerns exist.
There are serious cases where visitation can be substantially restricted or denied, but that requires a different analysis.
So when someone tells me:
“I want full custody and I don’t want the other parent seeing the child,”
I hear at least two separate requests.
Who should have legal and physical custody?
And what parenting time should the other parent have?
Those questions need to be analyzed separately.
No.
California does not require every custody case to result in an equal division of parenting time.
The court has broad discretion to select a parenting plan that is in the child’s best interest.
There is also an important difference between joint legal custody and joint physical custody.
Parents can have joint legal custody without having a 50/50 parenting schedule.
Joint physical custody likewise does not necessarily mean the child’s time must be divided with mathematical equality.
The custody terminology matters.
Although joint legal custody is common in practice, California law does not establish a general statutory preference between joint legal custody, joint physical custody and sole custody when two parents are litigating against each other.
The overarching consideration is the child’s best interest.
That distinction is important.
Saying that joint legal custody is the practical norm does not mean a judge is legally required to order it in every case.
There are circumstances where sole custody is appropriate.
The question is whether the evidence establishes that the requested custody arrangement serves this child’s best interest.
California courts focus on the child’s best interest.
The court’s primary concern includes the child’s health, safety and welfare.
Depending upon the facts, the judge may consider issues involving domestic violence, child abuse, the child’s relationships with the parents, stability and continuity, the existing parenting arrangement and other circumstances affecting the child’s welfare.
The judge is not deciding which parent was the better husband, wife, boyfriend or girlfriend.
The judge is deciding custody.
That difference sounds obvious, but it becomes extremely important in contested cases.
Parents frequently arrive at consultations with a long list of complaints about the other parent.
Some of those facts are extremely important.
Others have almost nothing to do with child custody.
Infidelity is a common example. So are complaints about a new boyfriend or girlfriend, disputes over money, arguments during the relationship and personality conflicts.
The question I ask is:
“How does this affect the child?”
If it does not affect the child’s health, safety, welfare, stability or relationship with either parent, it may have very little importance to the custody determination.
That is one of the areas where good custody preparation matters.
We need to separate the evidence that matters from the anger that naturally accompanies the end of a relationship.
Domestic violence deserves separate treatment because California has a specific statutory framework addressing its effect on custody.
Family Code section 3044 can create a rebuttable presumption against awarding sole or joint legal or physical custody to a parent found to have perpetrated qualifying domestic violence within the statutory period.
That can dramatically change the ordinary custody analysis.
A case involving a qualifying domestic violence finding is therefore very different from a case where two parents simply cannot communicate well.
We discuss that issue in detail in our article on Domestic Violence and Child Custody in California.
Legitimate child abuse and safety concerns can obviously affect custody and visitation.
But allegations need evidence.
A parent cannot simply walk into family court, say the other parent is dangerous, and assume that will result in sole custody.
Courts may consider declarations, witnesses, police reports, medical information, Child Protective Services investigations, custody evaluations, the child’s statements when appropriately obtained and other evidence depending upon the circumstances.
In Riverside County, certain cases involving allegations of abuse or other detriment may also involve an investigation under Family Code section 3027.
The more serious the allegation, the more important it becomes to present reliable evidence rather than conclusions.
The history of the parenting arrangement matters.
If one parent has provided nearly all of the day-to-day care while the other parent has had very little involvement, that history may be relevant when the court establishes a parenting plan.
But custody is not necessarily a reward for past performance.
The court is trying to determine what arrangement will serve the child’s best interest going forward.
The child’s existing relationships, stability and established routine can all become important.
Again, the facts matter more than the label “full custody.”
Courts and family law attorneys frequently use terms such as “primary physical custody,” “primary caretaker” or “primary residence.”
Those phrases are commonly used to describe parenting arrangements where the child spends more time with one parent.
But they should not automatically be confused with the statutory concept of sole physical custody.
The actual custody order and parenting schedule matter.
This distinction can become particularly important later if one parent seeks to modify custody or relocate with the child.
Joint legal custody does require parents to share responsibility for important decisions concerning their child.
It does not require former spouses or partners to become friends.
Parents can disagree and still exercise joint legal custody.
The problem becomes more serious when the disagreement prevents necessary decisions from being made or the conflict itself begins affecting the child.
That is when the court may need to become involved.
The goal should be a workable decision-making structure, not forcing parents to have a relationship they simply do not have.
In Riverside and San Bernardino County, contested custody matters generally proceed through Child Custody Recommending Counseling.
These are recommending counties.
The CCRC counselor may make recommendations to the judge, and in my experience those recommendations can carry substantial weight.
This is one reason we spend considerable time preparing clients for CCRC.
Going into mediation and repeatedly saying:
“I want full custody”
does not explain why that arrangement is in the child’s best interest.
A much better presentation identifies the actual problem.
Why should legal custody be sole?
Why should physical custody be sole?
What has happened under the existing arrangement?
How has it affected the child?
What parenting time should the other parent have?
What specific order would solve the problem?
Those are the questions that matter.
Yes.
A sole custody order does not itself terminate the other parent’s parental rights.
Custody orders can potentially be modified when the applicable legal requirements are satisfied.
The standard may depend upon whether the existing order is a final custody determination, what change is being requested and whether the requested modification actually changes custody or merely adjusts parenting time.
Children grow and circumstances change.
Parents should therefore avoid thinking of custody labels solely in terms of winning and losing.
Usually, there is a reason behind that statement.
Sometimes the parent is afraid.
Sometimes there is domestic violence or a legitimate safety issue.
Sometimes one parent has been largely absent.
Sometimes the parents cannot make important decisions together.
Sometimes the real concern is simply that the parent wants the child to live primarily with them.
And sometimes the request comes from anger toward the other parent rather than something affecting the child.
My job is to figure out which situation we actually have.
After nearly thirty years handling family law cases, I have found that custody cases are presented much more effectively when we stop talking generally about “full custody” and identify the specific orders the child actually needs.
Do we need sole legal custody?
Sole physical custody?
A different parenting schedule?
Supervised visitation?
Decision-making authority over a particular issue?
Or is the existing joint custody structure basically appropriate despite the parents’ conflict?
Once we answer those questions, we can start building the case around the evidence that actually matters.
“Full custody” is not a specific California statutory custody term. Parents usually mean sole legal custody, sole physical custody, or both.
Sole legal custody gives one parent the exclusive right and responsibility to make decisions concerning the child’s health, education and welfare.
Yes. As a practical matter, joint legal custody is the norm in many ordinary California custody cases involving two parents who remain involved in the child’s life. However, California law does not create an automatic statutory preference requiring joint legal custody in every contested case.
Sole physical custody means the child resides with and is supervised by one parent, subject to the other parent’s visitation rights.
No. Sole custody does not automatically terminate the other parent’s parental rights or eliminate visitation.
No. Legal custody concerns decision-making. Physical custody concerns where the child lives and who supervises the child.
Yes. Joint legal custody and physical parenting time are separate issues.
California does not require every case to result in an equal division of parenting time. The court determines the parenting arrangement according to the child’s best interest.
Infidelity by itself generally does not determine child custody. The court focuses on facts affecting the child’s best interest.
Yes. A qualifying domestic violence finding can trigger the Family Code section 3044 rebuttable presumption against awarding the perpetrator sole or joint legal or physical custody.
Poor communication can be relevant, but ordinary disagreement does not automatically require sole legal custody. The important question is whether shared decision-making is workable and serves the child’s best interest.
Yes. A sole custody order does not terminate the other parent’s parental rights, and custody may potentially be modified when the applicable legal requirements are satisfied.
If you are saying, “I want full custody,” the first step is figuring out exactly what custody order you actually need.
Sole legal custody, sole physical custody, supervised visitation and a change in parenting time are different remedies. They require different facts and, often, different evidence.
At Edgar & Dow, we have decades of experience handling contested child custody matters throughout Riverside County, San Bernardino County and Southern California. We prepare our clients not only for the courtroom, but also for CCRC and the other stages of the custody process that can significantly affect the eventual result.
If you are considering asking for sole custody—or the other parent is seeking sole custody of your child—contact Edgar & Dow to schedule a consultation. We can review the existing custody arrangement, identify the issues that actually matter and determine what orders should be requested based upon your child’s circumstances.
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