Relationships are complicated, and they don’t always work out. Marriages can fall apart after twenty years of love and friendship, and the ride of a lifetime can (and often does) come to an end. While divorce rates have been on the rise for quite some time, they’ve dramatically increased as a result of the pandemic, and experts are forecasting that we have not yet reached the peak to see the effects of COVID-19 on long-term, strained relationships.
For many of these couples, divorce is a messy thing to say the least. The separation of property can be difficult enough as is after years and decades spent entangled together, but it’s custody where the real battle starts.
We all want to play a role in the lives of our children – and we each believe we know what’s best for them. It’s rare to see divorcing couples amicably and unequivocally agree on how to split their time between their children, and most of the time, custody becomes the main point of contention in any given divorce battle.
Understanding how custody can be split, how a decision is made, how that decision is enforced, and how it can be changed, is important to know what you want to achieve with your long-term custody strategy.
Even more important is understanding that custody only has one true goal: whatever is in the best interest of the child. It is this fundamental point that both parents will have to argue about and will usually reach different conclusions on.
Defining Custody: What You Need to Know
Custody is split between four quadrants if you will: on one side, custody can be either legal or physical. On the other half, it’s either sole or joint. When a custody decision is made, a custodial parent may have physical joint custody but legal sole custody over their children, or both physical and legal joint custody, or physical and legal sole custody, and so on.
These decisions are made based on negotiations prior to the court hearing for the final custody agreement. Parents can codify these decisions in a parenting plan, which becomes court enforceable, and effectively acts as each parent’s bible when it comes to custody and childcare responsibilities. These parenting plans grant privileges and set boundaries for each parent and refusing to follow them can lead to civil consequences in court.
Legal vs. Physical Custody
Legal custody is defined as the right to make decisions on behalf of your child. When you have legal custody of your child, you are their proxy. Legal custody can be split. This generally means that one parent may be responsible for healthcare decisions, while the other is responsible for what school their child goes to.
Physical custody is where the child lives. Joint physical custody means that a child spends time at both parents’ homes, as per the parenting plan. This might mean spending weekends at mom’s, and weekdays at dad’s, or spending a week at each parent’s home. The time a child spends at a parent’s home does not need to be split 50/50 in joint custody.
Furthermore, sole physical custody does not mean that the child can’t visit or see the other parent. In fact, it might mean that they still get to go to mom’s or dad’s place over the weekend, but that their primary residence – where they live most of the time – is in one parent’s home.
Joint vs Sole Custody: The Main Differences?
The main difference between sole and joint custody is that sole custody is harder to achieve but easier to maintain. If the child has one custodial parent, then childcare is mostly that parent’s responsibility.
The other parent must still pay child support and may request visitation rights, but in a sole custody agreement, one parent typically has legal and/or physical custody over their child and needn’t split custody and the responsibilities that come with it via a complex parenting plan.
But gaining sole custody is no easy feat. Few parents are willing to give up the right to be a parent to their child, and there are few circumstances under which a court would allow one parent to deprive the other of that right.
When Can You Argue for Sole Custody?
Sole custody is usually awarded in cases where the other parent is a danger to the child’s wellbeing, or to the wellbeing of the other parent. Violent, unpredictable, or dangerous parents will have a hard time arguing for joint custody, or even visitation rights.
There are also cases where sole custody is awarded to one parent because the other parent is unable to meet the challenges of parenthood. Being a parent is a tough job, and not everyone is cut out for it.
There are some parents who simply aren’t around enough for their child, and struggle to prove to the court that they have the time and will be there as a custodial parents after the divorce.
This is especially true if the parent in question is planning to move away from the child’s neighborhood and school or has already moved in with someone new. Note that you don’t have to be a super dad or a super mom to argue for joint custody. Most courts just want proof that you have been around in your child’s life and play a big role in their day-to-day – and that you plan to continue being a mother or father for them, and have the means to do so both financially and in terms of time.
Joint Custody: Making It Work
If both you and your ex are adamant about playing a large role in your child’s life, it’s time to argue exactly how large that role is going to be. This is where most custody cases swerve into difficult territory, as parents begin to argue about specific timeslots, rights, and considerations.
As in all things, it helps to be flexible, but you do need a few adamant positions to ensure that your ex isn’t planning to steamroll you. An amicable custody agreement is always the best case scenario, but even then there may be things you need to compromise on, or negotiate together.
If you can’t figure out it alone, it’s always best to work through legal representation. Your respective lawyers can make a better case for each of you and find ways to mediate the conflict without leading to problems for your case. Remember that being a parent includes being patient and peaceful, and any outbursts are likely to go against your favor when the time comes for an agreement to be finalized.
Can a Custody Agreement Change?
A custody agreement is effectively set in stone, but that stone can be upturned or amended with a legal chisel when truly necessary. If both parents agree to make a change together, they may work on getting another court date to amend the agreement.
If parents disagree vehemently on one aspect of the custody agreement, then the only real way a judge would change it is if the child was in danger, and custody or visitation rights need to be changed to protect them. These cases are thankfully rare, but not as rare as they should be.
If you require legal help in a case involving abuse or violence, call 800.799.7233 if your internet usage is being monitored, or visit The Hotline.