One of the most difficult aspects of a divorce is sorting out the custody arrangements. Many parents find the idea of having to spend time apart from their children upsetting, and children feel the same way about their parents. Unfortunately, when parents can no longer maintain their relationship, everyone winds up having to sacrifice some time together.
Exactly how much time you have with your children depends on the custody arrangement. A common arrangement is for parents to have shared or joint custody. Joint custody is typically granted at the start of the divorce and it means that parents split time with the kids – not necessarily a 50/50 split – and usually that they both share legal custody of the children – in other words, the right to make important decisions, like medical or educational decisions. However, in some cases, parents do not start out with shared custody but instead have full or partial custody.
What is Full Custody?
Full custody, also known as sole custody, is what it sounds like: when one parent has both physical custody and legal custody over the child or children. The non-custodial parent may have formal visitation rights ordered by the court, informal visitation rights agreed on by the parents, or no involvement at all. When one parent has sole custody, the other usually has no legal say over the child, which means they can’t do things like enroll the children in school or sign off on medical procedures.
While it was once common to award one parent full custody, modern courts have largely moved away from automatically awarding full custody to one parent, preferring joint or shared custody instead. However, full custody may be awarded to one parent under certain circumstances. For example, if the non-custodial parent is physically or mentally incapacitated, unfit, or abusive, a judge may decide that the other parent should have sole custody.
One parent may also wind up with full custody if the other parent chooses not to seek any legal or physical custody rights, or if they actively forfeit their parental rights and responsibilities.
Although a final custody arrangement ordered by the judge is considered permanent, custody arrangements can be modified if there is a good reason to do so. That means that a parent who wins sole custody may not have it forever – they may eventually need to share some of their custody rights with the other parents. That’s often where partial custody comes in.
What is Partial Custody?
A partial custody arrangement is usually one where one parent has less time with the child than the other, and often fewer legal custody rights as well. The parent with primary custody, who has the child for most of the time, may have full legal custody. This means that that parent makes all of the legal decisions for the child, while the parent with partial custody makes none of those decisions. In some cases, however, a parent with partial custody may have the right to make some legal decisions for their child, but not all of them.
Because the parent with partial custody has less time with the children and does not live with the children, they’re usually responsible for paying child support to the parent who has primary custody. The way that child support is handled can vary widely depending on jurisdiction and individual circumstances, but generally, a noncustodial parent can expect to pay child support to the parent with whom the children are living.
Partial custody is often awarded when previously, one parent had sole or full custody and the other parent had no legal custody. For example, if a parent was incarcerated at the time of the divorce, the parent who was not incarcerated would probably be granted sole custody, but when the incarcerated parent is released, they could petition the court for custody rights. In that case, a judge might grant the newly released parent partial custody.
Like sole custody, an order of partial custody can be changed if circumstances warrant a change. If a parent who was previously unfit changes their behavior and wins partial custody, then returns to the behaviors that made them unfit, the partial custody could be revoked. If a parent who had partial custody because they lived far away relocates to be closer to their child, they could be awarded a greater share of custody rights, or even become the custodial parent in under some circumstances.
How do Judges Decide Custody?
When considering whether to award full custody, partial custody, or shared custody, a family court judge has to consider the best interests of the child. In a family court case, the question really isn’t about what is most fair for each parent. Instead, the children’s needs are prioritized. That may mean one parent gets less time or fewer rights in order to provide the child with more consistency, a healthier environment, or some other consideration.
Some of the factors that family court judges look at when deciding custody disputes include:
- The relationship that each child has with each parent
- The mental, physical, and emotional health of each parent
- The financial stability of each parent
- The housing situation of each parent
- Any past instances of abuse or neglect
- Any special needs that the child might have
Parents who are involved in a custody dispute should be prepared to show evidence in court that supports their custody preference. For example, if a parent wants sole custody because the other parent has been abusive in the past, they might need to show medical records or police reports or introduce witness testimony confirming past instances of abuse.
Whether you’re trying to get full custody, trying to get partial custody, or petitioning to modify a previous custody order, preparing for a hearing in family court can be daunting. After all, what’s more important than maintaining your connection with your children? A legal resource group like National Family Solutions can give you the resources you need and help you prepare your documentation so that you’re ready to represent yourself in family court.