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You are here: Families & Children > Custody & Visitation > Basics of Custody and Visitation
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What is "custody and visitation"?
What are the types of custody orders?
What are the types of visitation orders?
What is a “time-share plan” or a “parenting plan”?
What does the law consider when deciding custody and visitation?
What is “the best interest of the child”?
If we have joint legal custody, do we have to agree on everything?
If we have joint physical custody, do our children have to split their time equally between us?
Do grandparents have the right to visitation?
What is the process for getting a custody and visitation court order?
Can a custody and visitation order be changed?
What is “custody and visitation”?
When you separate or divorce, you need to decide who will have “custody” of your children and how they will be taken care of. You also need to decide on visitation, which means how each parent will spend time with the children.
There are two kinds of "custody" orders:
- Legal custody, which means to who makes important decisions for your children (health care, education, and welfare), and
- Physical custody, which means who your children live with.
“Visitation” (also called “time-share”) is:
- the plan for how the parents will share time with the children.
In California, either parent can have custody, or the parents can share custody. The judge makes the final decision about custody and visitation but usually will approve the arrangement both parents agree on.
If the parents can't agree, the judge will make a decision at a court hearing. The judge will usually not make a decision about custody/visitation until after the parents have met with a mediator from Family Court Services.
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What are the types of custody orders?
Legal custody can be:
- Joint, where both parents share the right and responsibility to make important decisions about the heath, education and welfare of the children.
- Sole, where only one parent has the responsibility to make the important decisions about the health, education and welfare of the children.
Some examples of the decisions or choices parents with legal custody make are:
- school or childcare
- religious activities or institutions
- psychiatric, psychological, or other mental health counseling or therapy needs
- doctor, dentist, orthodontist, or other health professional (except in emergency situations)
- sports, summer camp, vacation, or extracurricular activities
- travel
- where to live
Physical custody can be:
- Joint, which means that the children live with both parents.
- Sole or primary, which means the children live with one parent most of the time and usually visit the other parent.
Sometimes, a judge gives parents joint legal custody, but not joint physical custody. This means both parents have share the responsibility in making important decisions in the children’s lives. But, the children live with one parent most of the time. The parent who does not have physical custody usually has visitation with the children.
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What are the types of visitation orders?
- Visitation: When the parent who does not have the children more than half of the time has visitation with the children. Generally, it helps the parents and children to have detailed visitation plans to prevent conflicts and confusion.
- Supervised Visitation: When the children's safety and well-being require that visits with the other parent be supervised by you, another adult, or a professional agency. Click here for more information on supervised visitation. Supervised visitation is sometimes also used in cases where a child and a parent need time to become more familiar with each other, like if a parent hasn’t seen the child in a long time and they need to slowly get to know each other again.
- No Visitation: This option is used in situations when visiting with the parent, even with supervision, would be physically or emotionally harmful to the children. In these cases, it is not in the best interest of the child for the parent to have contact with the child.
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What are a “time-share plan” and a “parenting plan”?
A time-share plan is another term used for visitation plan.
A parenting plan can be a visitation plan, but usually also includes a custody plan that explains who has legal and physical custody.
Click here for more information on parenting plans.
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What does the law consider when deciding custody and visitation?
The law says that judges must give custody according to what is in the best interest of the child. Judges look at the children’s health, safety and wellbeing to decide whether to give custody to one or both parents. Courts also consider any history of abuse by one or both of the parents.
Courts do not automatically give custody to the mother or the father, no matter what the age or sex of your children. Courts cannot deny your right to custody or visitation just because you were never married to the other parent, or because you or the other parent has a physical disability, or a different lifestyle, religious belief or sexual orientation.
In a few cases, if giving custody to either parent would harm the children, courts give custody to someone other than the parents because it is in the best interest of the children. Usually, this is called “guardianship,” where someone who is not the parent asks for custody of the children because the parents cannot care for the children. Click here for more information on guardianship.
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What is “the best interest of the child”?
It is what judges must consider to make their decisions about custody and visitation. To decide what is best for a child, the court will consider:
- the age of the child,
- the health of the child,
- the emotional ties between the parents and the child,
- the ability of the parents to care for the child,
- history of family violence and/or substance abuse, and
- the child’s ties to school, home, and his or her community.
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If we have joint legal custody, do we have to agree on every decision?
No. With joint legal custody both parents have the right to make decisions and either parent can make a decision alone. But to avoid having problems and ending up back in court, both parents should communicate with each other and cooperate in making decisions together.
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If we have joint physical custody, do our children have to spend exactly half the time with each of the parents?
No. If there is joint physical custody, usually the children spend a little more time with one parent than the other because it’s too hard to split the time exactly in half. When one parent has the child more than half of the time, then that parent is sometimes called the "primary custodial parent.”
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Do grandparents have the legal right to visitation?
Grandparents can have special visitation rights under certain circumstances. The judge will look at many factors, especially what the parent with custody of the child wants. The judge’s final decision will be based on the best interest of the child but the parents have a lot of say in what they think is best for their children. The law gives special consideration to requests for visitation by grandparents when their son or daughter, the child’s parent, is deceased.
Grandparents wanting visitation should first make every effort to reach an agreement for visitation with the parents of the children. If they can’t reach an agreement, grandparents can ask the court either by joining an existing case between the parents of the children, or by filing an independent request for visitation in court.
For more information on grandparent visitation rights, contact the Senior Legal Hotline Grandparent Project  . They can provide you information send you written materials to help you with your case. You can also find resources in your area to help you at LawhelpCalifornia.org .
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What is the process for getting a custody and visitation court order?
In most cases, parents can make their own agreements for custody and visitation. If you and the other parent agree on custody, the judge will probably approve your agreement and it will become a court order. After the judge signs your agreement, file it with the court clerk. Click here for more help on writing up a custody and visitation agreement or parenting plan.
If you cannot agree, the judge will send you to mediation and a mediator from Family Court Services will help you. If you still cannot agree, you and the other parent will meet with the judge. Generally, the judge will then decide your custody and visitation schedule.
In some cases, the judge may appoint an evaluator to do a custody evaluation and recommend a parenting plan. A parent can also ask for an evaluation, but the request may not be granted. Parents may have to pay for an evaluation.
The judge also may appoint lawyers for children in custody cases. The judge will also decide who will pay for the child’s lawyer’s fees.
Click here for more information on getting a custody and visitation order.
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Can a custody and visitation order be changed?
After a judge makes a custody/visitation order, one or both parents may want to change the order. Usually, the judge will approve a new custody and visitation order that both parents agree to. If the parents can't agree on a change, one parent can ask the court for a change. Usually, that parent will have to ask for a court hearing and prove to the judge that there is a change in circumstances, harm to the children or other good reason to change the order. Both parents will probably have to meet with a mediator to talk about why you want to change the order.
Contested custody or visitation cases are complicated. Talk with a lawyer to understand how law affects you and your rights. Click here for help finding a lawyer.
Click here for more information on changing a custody and visitation order.
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Last modified: 03/17/2008
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