April 23rd, 2023
April 23rd, 2023
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4.5 - 2 votes
Issues surrounding children can often be the most contentious and difficult to resolve during the process of divorce or separation. When parents separate or divorce, the term "custody" serves as shorthand for "who lives with and cares for the children" under the divorce agreement or child custody agreement. However, the many legal terms used for child custody can be confusing and unclear as to what they mean. While most people have a general idea of what child custody is, not everyone knows the many details about the different types of custody. Which type of custody is best for your situation and your family? How does joint custody work? This guide will address these issues and more by breaking down the different types of child custody that are necessary to understand when making a Child Custody Agreement. To find a guide that discusses more of the considerations when making a Child Custody Agreement, please see the guide Who Gets the Kids: Creating and Modifying Child Custody Agreements. To find a comprehensive guide that discusses other issues related to a divorce involving children, such as child support, this website also has a How to Handle Kids in a Divorce guide that covers those topics.
When parents separate or divorce, the term "custody" serves as shorthand for "who lives with and cares for the children" under the ensuing divorce or child custody agreement. In most states, custody is split into two types.
Physical custody is one of the most commonly understood forms of child custody. If a parent has been granted physical custody of a child by a court, that parent has the right to have the child live with them. A parent with physical custody of their child is responsible for providing care to the child on a daily basis. In some states, an award of joint physical custody is possible when a child will be staying with both parents for significant periods of time. In most situations, joint physical custody will only be awarded when the parents of the child plan on living relatively close to each other. If the parents live too far apart, the strain on the child may play a role in awarding one parent or the other sole physical custody. Only one parent being awarded physical custody of the child is the most common arrangement since the logistics of shared physical custody can be complicated and impracticable to manage long-term. Sole physical custody is the term used when a child lives primarily with one parent while the other parent only has limited visitation or custody rights. As an example, a mother could have sole physical custody where the child spends every day living with her and only visits the father for a few hours at a time. That being said, if the parents create a Child Custody Agreement by themselves, they are free to choose shared physical custody if it makes the most sense to them and their decisions will generally be adhered to by the judge.
Generally, the person who has physical custody of the child is known as the "custodial parent," while the parent who does not have physical custody of the child is known as the "non-custodial parent." In situations where both parents have physical custody, the parent with whom the child spends more time is the default custodial parent. If the child spends equal time living with both parents, then both are known as custodial parents.
If a parent has been awarded legal custody of a child, this means that the parent has the legal authority to make decisions about the child's education, health, and upbringing. The parent with legal custody of a child will have the authority to decide which school to send the child to, which religion the child will practice, and what sorts of medical care the child will receive. Many states regularly award joint legal custody after a divorce. This means that parents will have to cooperate and make joint decisions about their child's upbringing. Similarly to physical custody, parents are free to decide to share legal custody or only give legal custody to one parent if they write their own Child Custody Agreement which is then memorialized by a judge.
In most child custody cases, legal custody is awarded to both parents unless it is shown that one parent is somehow unfit or incapable of making decisions about the child's upbringing. A history of drug abuse, domestic violence, or child neglect would play a role in this decision, which is focused on what's best for the child.
If one parent in a joint legal custody arrangement takes decision-making powers away from the other parent, perhaps by making a unilateral decision about a child's education, the other parent can go back to court to get a judge to enforce the joint legal custody order. If one parent feels that the other is making it hard or impossible to make decisions simply to spite them, they are free to go back to court to attempt to get sole legal custody of their child. However, many states and courts try to refrain from granting sole legal custody as they feel that having both parents looking out for the interests of the child is preferable to just one.
In addition to physical and legal custody, there is another element of custody concerning whether or not parents share their custodial rights and responsibilities with each other.
When a court gives sole custody to one parent, that parent is given exclusive physical and legal custody of the child. Sole custody is most commonly given when one parent is unfit or unable to parent their child, and so sole custody is awarded to the other parent. A judge can award sole legal or physical custody of a child to one parent. Sole physical custody is often awarded in divorce proceedings when it can be shown that one parent is unfit, often due to financial or addiction problems. If one parent has taken to living with a new partner who is deemed unfit to care for or be around the child, then sole physical custody may also be awarded to the other parent.
However, except for in extreme circumstances, even if sole physical custody has been awarded, there has been a push to allow more lenient visitation rights for the parent who does not live with the child or have physical custody of the child. This visitation is much more limited than in a shared legal or physical custody arrangement.
Having sole custody does not necessarily mean that a parent can relocate without the court's permission. If the other parent has any visitation rights, relocation jeopardizes their rights. Therefore, relocation is an issue that has to be addressed by the court.
If the parents of a child do not live together but share the responsibilities of making decisions about the child or housing the child, they are engaging in joint legal or physical custody of the child. Joint custody can be joint legal custody, joint physical custody, or both joint legal and physical custody. Recently, courts have been allowing joint legal custody even when sole physical custody is awarded to one parent. For parents that share joint physical custody, it is quite common for them to share joint legal custody as well. However, the opposite is not necessarily the case. Parents that share joint legal custody will not always share joint physical custody.
When parents share joint physical custody of a child, they will often draw up a joint custody arrangement, also known as a parenting agreement, that they will present to the judge to be ratified. This arrangement is based upon the parents' work schedules, the child's school schedule, as well as the needs of the child. For parents that live close to each other, meaning that traveling to school from either house is not an issue, it is common for parents to rotate weeks or months with the child. When parents live further apart, it can be common to have a joint physical arrangement where the child will stay primarily with one parent, but split weekends, holidays, and vacations between the two.
Some custody arrangements allow the child to remain in the family home while the parents move in and out according to the custody arrangement. This unique set up is often called a "bird's nest custody arrangement," and can be especially beneficial to parents of young children.
One of the main advantages of joint custody for the children is that they get to remain in contact with both of their parents and continue their relationships on both sides. In addition, joint custody has the advantage of placing an equal load on both parents in terms of the burdens of raising the child.
Most modern custody arrangements give physical custody to one parent, called the custodial parent, and grant visitation rights and shared legal custody to the non-custodial parent. Typically, visitation rights give the non-custodial parent exclusive time with the child every other weekend, alternating major holidays, and a number of weeks during summer vacation.
In the past, true "joint custody" arrangements were more common, in which the child lived with each parent roughly half the time. Today, such arrangements are much rarer. In order to lessen the disruption of the child's routine, one parent is usually given primary custody of the child.
About the Author: Malissa Durham is a Legal Templates Programmer and Attorney at Wonder.Legal and is based in the U.S.A.