Making sure a child maintains a good relationship with both parents after a divorce is a worthy goal. It can also be difficult to achieve. It is not uncommon for one parent to need to move to a new home and community for work or family reasons. When this happens, it can upend the child custody and visitation agreement that was originally worked out.

Overview of California Law on Child Custody

California law encourages parents to work out their own agreement with regard to child custody and visitation. Once that agreement has been approved by a judge, it has the force of a court order. Violation of that order can result in a criminal contempt proceeding. Specifically, if one parent violates that order, such as by moving to a location that would make it impossible to follow the agreed parenting time schedule, the other parent can file an Order to Show Cause and Affidavit for Contempt with the court. The parent in violation can be subject to criminal penalties such as community service, jail time, and/or fines. 

How Child Custody Law Applies to One Parent Moving Away

California law does not specifically require that divorced parents remain within a certain distance of one another to facilitate visitation. Parents are free, however, to include a requirement in their parenting plan that both parents remain within a certain geographic area. Then, if one parent tries to violate that agreement by moving far away, the other parent has legal recourse. If such a clause was not included in the court-approved parenting plan, then the issue becomes less clear. 

Many divorced couples want to co-parent their children in a joint physical custody arrangement but struggle with the amount of coordination it requires. 50/50 parenting time schedules can be hard on the children, too, as they have to move between their parents’ houses regularly. To address this, some parents have opted for a “nesting” arrangement, wherein the children stay in a single home and the parents rotate in and out.

The Pros and Cons of Nesting in California 

Some of the benefits of a nesting arrangement include:

• Children have the stability of one place to eat, sleep, and play. This can be most beneficial during the early stages of a divorce.
• Parents save back-and-forth trips for needed items. When a child frequently changes houses, it is too easy to forget or run out of something they need.
• Only one set of childcare paraphernalia is needed, and it gets to stay in one place. This is especially beneficial during a child’s infant and toddler years. Maintaining two sets of everything--cribs, high chairs, special toys and blankets, special food and bottles, etc.--is costly. 
• When parents live far apart, it can be easier for the parents to travel to the nesting house than to shift the children back and forth, especially when one parent has the flexibility to work remotely. When the children stay in the nest, parents avoid having to drive or fly the children back and forth or having the children travel unaccompanied.

Nesting can also be problematic in several ways:

As family structures have become more diverse in recent decades, child custody issues have become more complicated. Traditionally, the world has followed the “rule of two” and allowed a child to have just two legal parents at birth: the woman who gave birth to the child and her husband (or, if the woman was unmarried at the time of the birth, the child’s biological father could claim paternity). One parent would have to die or legally terminate their parental rights in order for an adoptive parent to take their place.

However, divorce, same-sex marriage, informal parentage, adoption, surrogate pregnancies, and assisted reproduction have all contributed to an increase in family structures involving more than two parents, and American courts are starting to adapt to the idea of tri-parenting.

In 2013, California became the first state to pass a law allowing for a child to have more than two legal, living parents, and a similar law was recently passed in Maine. Courts in at least 10 other states have approved specific cases of third-parent adoptions, dual paternity, “psychological” (non-biological) parents, or “tri-custody.”

Many divorced parents prefer the idea of joint physical custody of their children versus an arrangement in which one parent has sole physical custody while the other has scheduled visitation. However, when it comes to making it work in the real world, joint physical custody raises a lot of questions. Here are some answers to the most commonly asked questions:

Does Joint Physical Custody Require an Exact 50/50 Split of Time?

Joint physical custody implies a relatively equal split of a child’s time between two parents. However, the law does not require joint custody to be an exact, 50/50 split of calendar days. A time split of 60/40, for example, may still be considered joint physical custody. There is no hard and fast rule. 

Parents should note that, according to the California Child Support Guidelines, child support payments should be calculated based on the actual percentage of time a child spends with each parent.

When making decisions about your post-divorce parenting plan, it is important to understand the difference between joint legal custody and sole legal custody of your children.   

Joint Legal Custody

Having joint legal custody, which is the most common choice in California divorces, means that both parents have the right and responsibility to make decisions about the children. It does not mean the parents have to be in 100% agreement about every decision, but they do have to be willing to discuss these issues calmly and compromise based on the best interests of the children. 

When joint legal custody is ordered, the court documents should specify the situations when the consent of both parents is required and the consequences if one party does not obtain the other’s consent. Such orders should also specify that both parents should have full access to all school and medical records, and that parents must keep each other informed about the children’s location and care decisions.