First Choice: Joint Physical and Legal Child Custody

According to the website TMZ, actress and former child star Hillary Duff filed for divorce from her husband former Canadian hockey player Michael “Mike” Comrie. In her reason for the divorce, she cited the California standard “irreconcilable differences.” However, instead of asking the court to grant both parties joint physical custody of their son, she requested the court grant her primary physical custody with visitation only to Mike. The case is still pending.

In California, there are five different types of child custody:

  1. Joint custody – means joint physical and legal custody of a child

  2. Joint legal custody – means that both parents share the rights, responsibilities, and decision-making regarding a child

  3. Joint physical custody – means each parent will have significant periods of time of physical custody of a child

  4. Sole legal custody – means that only one parent has the right and responsibility and decision-making of a child

  5. Sole physical custody – means that a child will live with and under the supervision of one parent subject to the power of the court to order visitation rights to the other parent.

In California, the law states that it is public policy that children have frequent and continuing contact with both parents after the parents have ended their relationship and that both parents are equally entitled to custody of their children. It is also state policy to encourage both parents to share in the rights and responsibilities of child rearing. To that end, the state encourages joint physical and legal custody of children upon the breakup of the parents’ relationship. When that is not possible, custody will be awarded based on what is in the best interests of the child.

The California Legislature declared a child’s health, safety and welfare to be a court’s primary concern when determining a child’s custody or visitation. In other words, the court will award joint physical and legal custody of child to both parents, unless doing so would not be in the best interests of the child’s health, safety, and/or welfare.

For Hillary Duff to be awarded physical custody with only visitation of their son to Mike Comrie, she will have to show why it is not in the best interest of their child’s health, safety, and/or welfare to be in a joint physical and legal custody situation.

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