If you’re a parent with kids who is considering divorce, you might be looking at a series of difficult decisions, questions and discussions concerning your children and their care — with an emphasis on topics such as primary custody, joint custody and/or legal guardianship just to get the conversation started.
Here are a few important child custody terms to consider and perhaps some scenarios you may face to navigate what is best for your family.
The Difference between Legal Custody and Physical Custody
Divorce has its own vocabulary for legal terms and explanations, and at first it may seem overwhelming and confusing. So let’s begin with physical versus legal custody – the difference between these two concepts is crucial to understand before you file your request for custody:
- Physical custody is the term used to refer to the right of having the child reside with you. This includes the everyday routine and care of the child, as well as where the child will live. One parent is considered the “custodial” parent with full physical custody or sole physical custody if the child lives most of the time with that parent. The other parent is the “non-custodial” parent and would receive visitation.
- Legal and physical custody Legal custody is when a parent has the right and responsibility to make decisions about how to raise the child. Decisions can range from a child’s school, to their medical treatment and which religion they are raised in.
It’s also about the child’s general welfare. There are two types of legal custody – sole legal custody and joint legal custody, with joint being the more commonly awarded type of custody unless one parent is found to be unfit to care for the child.
The law of legal and physical custody is state-specific, and no two situations in any two families are the same, so it’s generally a good idea to involve a lawyer to get the best result for your kids. Courts can make any number of arrangements when it comes to determining custody. For instance, parents may have physical custody but not legal custody, or vice versa.
Types of child custody explained
Depending on each parent’s commitment and the discretion of a court, there can be several child custody situations:
Sole custody (also known as full custody) is when only one parent has the legal right and responsibility to make decisions regarding your child — physical and legal custody are included.
That typically translates to a little or a lot of time spent with one parent. It is possible for a judge to give sole custody of the child to one of the parents if the other parent unfit or cannot care for the child. These are cases where there may be neglect, drug or alcohol addiction, or child abuse or a history of violence or mental illness.
Joint custody means that both parents can have either joint legal custody, or joint physical custody, or joint legal and joint physical custody to the child. Parents are thus able to share the responsibility without feeling overwhelmed of one parent.
If these kids are in a parent’s physical custody, that parent is responsible for feeding them and taking care of them and getting them to school. That parent is also responsible for any medical or dental emergency that arises.
This can be either in the parenting plan or can be directly from the judge. Get it in writing A formal joint custody agreement can help provide a structure for successful co-parenting. It should be adaptable to grow and flex as your children grow and their needs change.
Joint custody is the most common because the courts try to insure both parents develop a relationship with the child, even in the event the bond shared by parents is completely severed.
In a split custody arrangement, custody is equal — or at least the other parent has significantly more time with the kids than in the typical visitation agreement. This kind of custody can be shared by the week or month. For instance, one parent might be the custodial parent during the school year, the other during the summer.
Some split custody arrangements consist of children remaining in the family home and their parents living separately in independent residences, alternating periods of residency in the family home to associate with their children. Treatment Note: Also know as “Bird’s Nest Custody” or “Bird Nesting” 3.
There are also cases where split custody is an alternative where one parent is given custody of one child, and the other parent is given custody of another. Judges, overall, are hesitant to split siblings up.
Third party custody Third-party custody refers to custody the court awards to someone who is not the child’s parent, even when the parent has asked for custody. Typically, it is a grandparent or other relative. The third party parent may have become the custodial parent of a lower tier child or children because the natural parents are not able to care for the lower tier child or children. This can occur if the biological parents have died, or if both parents are unfit.
As with any issue of custody, third-party custody is always subject to change. The judge may change or revoke non-parental custody at a later time. One cockroach can ruin the picnic – is a statement that certainly applies in this case. An abiding biological parent generally prevails if he or she can effectively show that they have been declared not unfit from an evidence-based hearing before the court.
How Custody Is Decided
In case of a divorce, however, custody issues will normally be addressed in one of the two following fashions:
Parents come to an agreement between themselves either through informal settlement negotiations, in a mediator setting, or in alternative dispute resolution proceedings.
It’s the court’s call (ordinarily a family court judge). Nearly all courts apply a standard which puts the “best interests of the child” and what is best for the child’s welfare above all else. This varies — the age of the child, the health and lifestyle of the parent, the ability to meet basic needs (eg, housing, food, medical care), and the preference of the child all come into play.
Moreover, a spouse can seek the court’s intercession for temporary orders to set up things such as child custody and visiting between the parties to provide for the financial needs and safety of the family and the best interests of any minor child not with a formal divorce action on file.
Final Thoughts
Looking out for the welfare of your child in a divorce is a complex mixture of legal, economic, and personal factors, and is rarely a simple equation to solve.
But understanding the custody options available to you and the rules that govern each one can take some of the stress and confusion out of deciding what’s in your child’s best interest.
