Child custody is an important topic for most divorcing parents. Who will get custody? How will you share custody? What are the limits of your custody agreement? What are the best strategies for sharing custody amicably? What happens when a parent violates the custody arrangement?
Before you can get to any of those questions, it’s necessary to understand the different types of custody and what they entail. That will give you a better idea of what you’re dealing with and what you might want your custody arrangement to be.
What Is Legal Custody?
There are two main types of custody: legal and physical. It’s easy to think that the term “legal custody” refers to a legal custody order or agreement between parents approved by the family court, but that’s not exactly the case.
The term “legal custody” actually refers to the rights and responsibilities of making certain significant decisions for the child. You need legal custody to enroll your child in school, for example. Parents who have legal custody have the right to make medical and mental health decisions for their children.
Legal custody gives parents the right to decide how their children will be educated and what kind of religious training they’ll receive if any. If a minor wants to do something that’s normally reserved for adults, like get married or undergo elective plastic surgery, they’ll need the parent who has legal custody of them to sign off on the forms.
When married parents have a child or adopt a child, the law assumes that they’ll make these kinds of decisions for their child together, so married parents have joint legal custody by default. When parents divorce, that legal custody may change – although, it’s very common for divorced parents to continue to share legal custody of their children.
Remember, legal custody doesn’t have to do with who the child lives with or who contributes the most to their upbringing, it has to do with the right to make major decisions about the child’s life. Generally, both parents want to retain that right even though they might not both have the same level of involvement they had prior to the divorce.
And family courts usually feel that it’s best for children if both of their parents continue to have a say in the raising of their children. Joint legal custody gives both parents the right to make those decisions. Of course, divorced parents are not always known for easily coming to agreements about important issues.
So what happens if the parents share legal custody, but can’t agree on major decisions about their child? There are a couple of options. A family court judge could decide that if parents can’t agree, one parent should be given sole legal custody, which means that they can make the decisions for the child by themselves.
Usually, this would go to the parent who is most present in the child’s life. Or, the court could designate one parent as the tie-breaker in the event of a disagreement.
Functionally, this isn’t much different from giving one parent sole legal custody, but it does give the parent with the tie-breaking power an incentive to at least consider the wishes and opinions of the other parent. This could be a good solution when parents generally agree on most things but have one major point of disagreement.
For example, if parents agree about medical decisions but can’t come to an agreement about their child’s education, the parent who is designated as the tie-breaker would have the last word on education decisions and the parents would continue to work together to make future decisions.
There are a few other reasons why a judge might grant one parent sole legal custody other than because the parents are unable to collaborate on important decisions about their child. A parent might lose legal custody if they live far away and have minimal involvement with their child, or if they’re abusive, neglectful, or otherwise unfit as a parent.
What Is Physical Custody?
The term “physical custody” refers to who has the children in their physical care. As with legal custody, parents can either share joint physical custody or one parent will be granted sole physical custody. If parents share joint physical custody, that usually means that the child lives with both parents for at least some part of the year.
In most states, parenting time does not have to be divided 50/50 for a joint custody arrangement, but there is usually some minimum amount of time that the child must spend with each parent in a year in order for a custody arrangement to be considered joint physical custody.
If one parent has sole physical custody, that doesn’t mean that the noncustodial parent never sees the child or has no rights. The parents may still share legal custody even if they don’t share physical custody, and the noncustodial parent may have visitation rights.
However, it’s sometimes true that a parent with sole physical custody has the right to move away with their children even if that limits the other parents’ visitation ability. Most of the time, family courts prefer to order shared or joint custody if that’s possible.
Research shows that the outcomes for children of divorced parents fare better if both parents are active in their lives. However, a family court may grant sole custody to one parent if the other parent lives too far away to reasonably share custody, or if the other parent is abusive, neglectful, or unable to provide a safe environment for their child.
Furthermore, parents can always settle on a custody and/or visitation agreement out of court and submit that for approval. Typically, the family court will approve an arrangement that both parents have agreed to unless it seems dangerous to the child or one parent seems to have been coerced.
In fact, most custody cases that arise from divorce are settled outside of court by the parents. Divorcing parents who are considering settlement outside of court should keep in mind that family courts prefer joint custody.
Thus, if unsuccessful at convincing their ex to agree to joint custody, they may have better luck letting the court decide. Custody cases can be emotional, but they often aren’t so complex that you need an expensive attorney to represent you.
A legal resource group like National Family Solutions can help parents prepare to represent themselves in family court.