Child custody isn’t something that most parents think about while they're married. But, if you’ve tried everything and are still considering divorce, it’s essential that you understand the definition and different layers to child custody. The court divides custody into two categories: legal and physical.
Additionally, judges must decide whether the parents are equipped to work together as co-parents, or if it’s in the child’s best interest for one parent to have most of the control after the divorce.
Physical Custody and the Child’s Primary Residence
In custody cases, parents tend to fight most over who should have primary physical custody of the child. Physical custody refers to a parent’s right to make day-to-day decisions for the child and indicates where the child will live. When the judge awards physical custody to one parent, the court refers to that parent as the custodial parent. Children typically attend school and have a social circle in the district where the custodial parent lives.
Noncustodial parents will usually receive a schedule of parenting time or visitation with the child. A typical calendar may include alternating weekends, holidays, and school breaks. Noncustodial parents can make day-to-day decisions about the child when exercising parenting time.
Legal Custody and Big Decisions
Legal custody refers to parent's authority for making decisions on significant issues affecting their child's upbringing and welfare, such as:
- whether the child should have a medical procedure or test
- where the child will attend school
- what religion the child should practice, including whether and where the child should attend church, and
- whether the child will participate in team sports (like football) and other extracurricular activities
A parent with sole legal custody can make these decisions unilaterally, without consulting the other parent. But when parents have joint or shared legal custody, they both will have a say in these decisions. If they parents can’t agree, they'll need to go back to court to have a judge decide the issue for them. To avoid that kind of problem, sometimes judges may award the parents joint legal custody but split up their areas of decision-making responsibility. For instance, one parent may have the right to decide about the child's education while the other parent has the right to decide about the child's religious upbringing.
Custody Can Be Sole or Shared
Ideally, parents will share legal and physical custody and work together to give the children a sense of stability and family. But, sharing custody doesn’t always work for divorced or separated parents, especially when emotions are high after a breakup. Judges can award joint (shared) or sole physical and legal custody, but it’s never an easy decision.
In most cases, courts want both parents to share in decision-making for the children and will award joint legal custody. However, joint legal custody only works when parents are willing to work together to decide what’s best for their children. If the parents can’t agree and are consistently asking the judge to intervene and decide how to handle significant issues that impact the child’s well-being, the court may assign decision-making responsibility to only one parent.
It’s less common for judges to award joint physical custody than joint legal custody to both parents. The goal in every custody case is to provide a stable environment for a child. For most children, especially once they begin attending school, jumping from one home to the other every few days creates a sense of insecurity and anxiety. Although joint physical custody can work for parents who keep a consistent schedule between both homes, it’s more common for the judge to award one parent primary custodial responsibility and the other parent scheduled visitation. A parenting time schedule, especially when both parents adhere strictly to it, will aid the child in feeling like there is consistency within the broken family.
How Does the Judge Decide Custody?
Each state has its own rules and procedures that judges follow before deciding a final custody award. Most judges will evaluate a specific set of factors, often called the best interest factors, which may include the following:
- which parent can provide a home, clothing, food, and other necessities for the child
- each parent’s ability to give the child love, affection, guidance, and discipline
- each parent’s mental and physical health
- whether there is a history of alcoholism or other substance abuse
- whether there's a history of domestic violence
- the child’s social and educational record
- the love and affection between each parent and the child
- the moral fitness of each parent
- whether either parent has abused the child or other parent
- the child’s preference (in some cases)
- each parent’s financial ability to care for the child, and
- whether each parent can provide a stable and safe environment for the child.
Once the court is satisfied with the evaluation, the judge will determine whether the parents should share physical and legal custody, or if one parent is better suited to provide for the child. It’s always best to try and create a custody agreement with your ex-spouse before involving the court.
Asking for Legal Help
If you and your ex are unable to negotiate a custody agreement, it might be time for you to look for help in other places. Some parents find it helpful to participate in private mediation, which is where you’ll both meet with a neutral third party (mediator) and discuss your ideal schedule. The mediator can’t create an agreement unless both parties agree, but can help facilitate a calm and meaningful conversation to help you negotiate. Mediation is confidential and (in most cases) voluntary, so if you and the other parent can’t agree, you can still ask the court for help.
If mediation fails, or if one parent refuses to participate, you can hire an experienced family law attorney to help create a custody agreement for your family. The laws surrounding custody and visitation are complex, plus the facts of every case are unique. Hiring an experienced attorney may cost more than going to court alone but knowing that you have someone by your side to protect your interests is usually worth it.