“Physical Custody” Definitions and Checklist
The Family Code contains definitions of both “sole physical custody” and “joint physical custody,” as discussed in §§1.7–1.8. It was common in years past for judgments to specify that only one party had custody, and the other had visitation. However, with the complicated parenting schedules now being fashioned, the nomenclature associated with custody has evolved.
Specific terminology may have little impact in many cases when it is obvious “where the child lives” because the lower timesharing parent either exercises exceptionally limited custodial time or lives a great distance away.
However, the line becomes much more blurred in cases in which the parties exercise a more equal timesharing arrangement or live within a short distance of one another (because this could mean both parents see the child on an almost daily basis).
Marriage of Burgess (1996) 13 C4th 25 clarified that a parent with physical custody of the children has the presumptive right to move, subject to certain conditions. However, a court is less likely to rely on the specific language used to define a custodial arrangement than it is to look at the actual time spent in each household. Marriage of Lasich (2002) 99 CA4th 702, 715. On the lack of a determinative legal meaning associated with the term “primary physical custody,” see §1.9 and chap 2.