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There are two types of custody: legal and physical. Legal custody is the power to make decisions about a child's health, education and welfare. Physical custody refers to the time the child spends with each parent on a regular basis. Parents may be awarded joint physical and/or legal custody or one parent may be awarded sole physical and/or legal custody. The parent who does not have physical custody usually has visitation. Courts must determine what is in the child's "best interest" in making a custody or visitation order. Courts no longer automatically give custody to the mother instead of the father.

Parents can make their own custody and visitation agreements. When parents cannot agree, the law requires the parents to participate in mediation. Parents may hire a lawyer to act as private mediator, or the Court will provide a mediator.

If parents cannot agree in mediation, the Court may order a child custody assessment or evaluation take place. The assessor or evaluator conducts an investigation to determine the best interest of the child or children and prepares written recommendations regarding custody. In making recommendations, the child's health, safety and welfare, including whether there has been abuse or domestic violence, must be considered.

Child custody and visitation orders can be modified under certain circumstances. When the parents have joint custody and one parent decides to relocate with a minor child or children, the other can file a "move away" action to determine whether the child should be permitted to move with the parent. It is important to contact a lawyer if a custody dispute exists.


Family law is somewhat unique in that the Court is required, in custody cases, to ensure that each party has access to legal representation. To do so, it may order, based on an income and needs assessment, one party to pay all or part of the other lawyer's fees and costs.
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Copyright © 2018, The Office of Rebecca Hughes Tran - The Garden Alameda, 1570 The Alameda, Suite 212, San Jose, CA 95126 - 408/975-9500
The firm serves all of Santa Clara County, including Palo Alto, Los Altos, San Jose, Los Gatos, Mountain View, Saratoga, Monte Sereno, Santa Clara, Campbell, Milpitas, Gilroy, Morgan Hill, Cupertino and Sunnyvale. It provides divorce mediation services as well as representation.