Custody and Visitation Orders – What is the difference and what does it mean?

When you have a family law matter involving children, the main issue typically is regarding custody and visitation orders.  Custodial orders and visitation orders are not the same.  The custody order is referencing legal and physical custody.  In an initial custody and visitation order, the Court’s focus is, what is in the best interest of the minor child?  Family Code §§ 3011, 3020, 3046; California Rules of Court 5.2.

First, legal custody is regarding who can make decisions regarding the health, safety, and welfare of your child.  This includes medical decisions, educational decisions, and decisions such as therapy, residency, etc.  Legal custody can be either (1) joint legal custody, (2) joint legal custody with final decision making to one parent, or (3) sole legal custody.

Joint legal custody means you must agree on these issues.

Sole legal custody with final decision making means you must work with your co-parent to come to an agreement, but ultimately if an agreement cannot be reached then one parent gets the ultimate decision making.  With this form of legal custody, you must actively make a good faith effort to discuss the issue and not merely state you have the final say.

Sole legal custody means you can make the decisions on these issues alone, but you must still communicate with your co-parent to inform them of the decisions and the issues going on with your child.

Regardless of which of the three legal custody orders you have, each parent has a right to “access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records.”  Family Code § 3025.  Information sharing with your co-parent regarding these welfare decisions is crucial for your child when you have a shared visitation schedule as it helps facilitate seamless transfers for your child.

Second, physical custody has to do with who the child resides with.  “Joint physical custody” does not require that the child live 50% with each parent.  A joint physical custody order is common whenever there is a significant physical sharing of the child.

Visitation orders are the specific orders which let the parties know who has the child in their care and when.  Visitation orders include both the standard day to day as well as holiday, special day and vacation orders.  While there are standard visitation schedules, there is no one size fits all. A visitation schedule must be tailored to your specific child and case as no two cases are the same.  Some examples of common 50/50 joint physical custody visitation schedules include a 2-2-3 schedule, a 2-2-5 schedule, or a week-on-week off schedule.  A 2-2-3 schedule is based on two weekly schedules that are alternated between the parties: Week 1 – Parent A has Monday and Tuesday, Parent B has Wednesday and Thursday, Parent A has Friday, Saturday, and Sunday and Week 2 – Parent B has Monday and Tuesday, Parent A has Wednesday and Thursday, Parent B has Friday, Saturday, and Sunday.  This schedule makes it so the minor does not go more than three days without seeing either parent.  A 2-2-5 schedule has Parent A having every Monday and Tuesday, Parent B having every Wednesday and Thursday and Parent A and B alternate weekends of Friday, Saturday, and Sunday.  This schedule makes it so the minor will go a maximum of five days without seeing one parent.

While these three schedules all result in a 50/50 schedule, the specifics of your case will determine which one is best for your children.  For example, younger children may need more frequent, shorter visits.  So a week-on-week off schedule would not be beneficial for a 3-year-old as this is an extended time away from each parent, but it would be more appropriate for a high school-aged child.  Additionally, neither of these schedules would be appropriate for a school-aged child if one parent lives too far from the minor’s school.  The specifics of your case and your child have to be considered when determining the visitation schedule which is in his/her best interests.

Once a final determination is made regarding custody, it is not permanent.  As the children grow and their needs change, or the parent’s circumstances change, the orders may need to be modified.  Any modification request to the custody orders requires a showing that there is a change of circumstances and that a modification in the best interest of the child.  This is a higher burden than merely showing the best interests of the child.  A modification of just the visitation schedule merely requires the parties to show that the requested modification is in the child’s best interests.

If you need to modify your custody or visitation orders, or you would like to discuss your custody or visitation options, please call our experienced family law lawyers to schedule a consultation to discuss your goals and strategies.