When a married couple splits up, they have to decide how to divide any number of things that belong to both of them – money, property, vehicles, maybe even businesses. And all of that can be difficult. But when the people splitting up are parents, they have to make even harder choices. Dividing property is one thing, but dividing children’s time between mom and dad can seem almost impossible. And it’s not something that can be done once and it’s over like it would be with a house and a car. Officially and legally, parents will have to share their children until they reach legal adulthood. Realistically, they’ll share them for the rest of their lives, and they may eventually be sharing grandchildren and great-grandchildren as well. If you’re a parent on the verge of a divorce or breakup with your child’s other parent, it’s important to understand the decisions about parenting time that will be in your future. A good place to start is understanding the difference between custody and visitation. What do those terms mean, what are the differences between them, and how do they apply in your situation?
What is Custody?
Defining custody is complicated, in part because there’s more than one type of custody. Typically, parents can have either physical or legal custody or both, and both physical and legal custody can be held solely by one parent or jointly by both parents. Take a look at what these different types of custody mean.
Legal Custody: Legal custody refers to the power to make important decisions in your child’s life. You need legal custody to enroll your child in school, to choose what religion your child will practice, or to make medical decisions for your child.
In many cases, parents share legal custody even if they don’t share physical custody. Even if one parent is not a full-time parent, it may be wise for them to have legal custody so that they can make important decisions in the event of an emergency, for example. If both parents have similar views about these major topics, it may not be an issue for them to share legal custody even if they don’t agree on much else. However, if the parents are frequently at odds, the judge can decide to issue an order making one parent the final decision maker in the event of a disagreement, so that arguments about major issues in a child’s life don’t drag on forever.
Physical Custody: Physical custody is what it sounds like – the person who has physical custody has the child living with them. However, physical custody does not necessarily mean sole custody. It’s possible for parents to share physical custody. In fact, it’s relatively common today for family courts to order joint physical custody if it’s safe for the child and possible to arrange.
Joint physical custody doesn’t necessarily mean that the child lives with each parent for an equal amount of time, either, although some states do have a minimum number of overnights with each parent that a child must have for the arrangement to be considered a joint physical custody arrangement. But parents can generally split these up in any way they choose as long as they both agree. Some children stay with one parent during the week and another on weekends or alternate weekends, others may stay with one parent for most of the year but spend summers, spring breaks, and occasional weekend holidays with the other parent, or any number of other arrangements. There’s no one right way for joint physical custody to look, although there are a few commonly-used parenting plan schedules that courts may employ when parents can’t come to an agreement on their own.
While joint physical custody is generally preferred by most family courts, it’s just not always possible. Sometimes that’s because one parent successfully argues that the other should not be given physical custody, but other times it’s because joint custody is simply not possible – perhaps because the parents live too far apart from each other, or maybe because one parent’s job makes it impossible for them to be available for their child for enough time in the year to qualify for joint custody.
In those situations, visitation is often the solution. Visitation is what happens when one parent has sole physical custody, but the other parent has the right to regular visits with their child. Parents who have visitation may also have shared legal custody of their child or they may not, depending on the situation.
Like custody, visitation doesn’t necessarily look the same from family to family, and it’s usually even more flexible than custody. Some divorced or separated parents have informal visitation agreements, typically not mandated by court order, where the child lives with one parent and the other is free to take the child for daytime or overnight visits as they wish, as long as the other parent is agreeable. Other parents have formal visitation arrangements, backed by court order, that specify which days and times the non-custodial parent will have the child.
Supervised visitation is another variation. This is frequently used when there’s some question about the non-custodial parent’s ability or willingness to parent the child safely – a parent who’s been accused of abuse or neglect in the past might be given supervised visitation, for example. Or it could be used for a parent who is newly re-entering a child’s life after a long period of absence until the child is comfortable spending time alone with that parent. Often supervised visitation is a temporary arrangement and can be changed to unsupervised visitation if things go well.
You may also hear about grandparent visitation. Whether or not grandparents and other non-parent relatives should have visitation rights can be a controversial question, and the laws vary from state to state. But if a grandparent can show that visitation is in the child’s best interests and won’t interfere with the parent-child relationship, in some states, they may be able to be awarded visitation rights. It’s important to know if this is a possibility in your area because divorces and breakups can cause extended families to split or feud in a variety of ways as well, and that may manifest in someone who is not your child’s parent asking the court for visitation rights.
A legal resource group like National Family Solutions can help you understand the custody and visitation laws specific to your state that are likely to apply to your situation.