Because the parents will no longer be living together in the same home, it is almost impossible for them to share these responsibilities equally. Therefore, a plan or custody arrangement must be agreed upon so that the needs of the child are met. If the parents can agree to the terms of custody, it is usually better for the child; however, when parents cannot agree, the courts step in to protect the interests of the child by ordering which parent will take the lead role in both physical and legal custody.
Physical Custody vs. Legal Custody
There are two types of custody: physical custody and legal custody. The other four types of custody are variations on these two basic types.
When people think of child custody, they typically think of physical custody first. Physical custody refers to which parent is given the right to have the child live with him or her. The advantage of having physical custody is that your child will spend more time with you. You will be considered the custodial parent, meaning that you will have physical possession of the child. Your ex-spouse will be the non-custodial parent and will have visitation or parenting time as ordered by the court or agreed upon between you and your ex-spouse.
Because your child is not with your ex-spouse each day, it is very important that your child have ample opportunity to interact with your ex-spouse, barring any reasons why this would not be in the best interest of your child, to maintain the parent-child relationship. Some states have adopted parenting plans whereby both parents must participate in mediation to set guidelines and rules about how they will ensure that each parent is an active and engaged participant in their child’s life. (This is one reason why you may need a lawyer. See Divorce: 8 Signs You Need a Lawyer.)
When a parent is awarded legal custody, he or she is given the legal authority to make decisions about the child’s upbringing including:
- Education and child care
- Medical, dental and other health care decisions
- Religious affiliations, activities and institutions
- Where the child will live
- Sports and extracurricular activities
It is the custodial parent’s obligation to make decisions that will affect his or her child’s welfare and life in a substantial way. When parents disagree or have differing philosophies about how to raise their child, it can create a hostile environment for the child. It is better if parents can come to an agreement about the decisions affecting their child; however, if that is impossible, a court will intervene on behalf of the child to ensure that the child’s interests are protected.
Sole Physical Custody vs. Joint Physical Custody
A judge may grant one parent sole physical custody of the child, meaning that the custodial parent will have the child for the majority of the time, while the non-custodial parent will have visitation or time-sharing with the child. Sole physical custody may be granted in situations where the child may be in danger if he or she lived with the other parent (such as in cases of drug abuse, alcohol abuse, financial problems, physical abuse, etc.). In some states, a parent may lose custody because he or she is living with a person who is a danger to the child or is deemed unfit to care for the child.
In a joint custody arrangement, both parents share custody of the child. This does not necessarily mean that each parent will have the same amount of time with the child; it simply means that the child lives with both parents rather than one parent having scheduled visitation with the child. This works best if the parents live close together, have flexible schedules and have an amenable relationship so they can work out the details of joint physical custody. If the parents can work together, joint physical custody can be good for the child as he or she gets to spend more time with both parents.
Sole Legal Custody vs. Joint Legal Custody
This situation is similar to sole and joint physical custody. In the situation of sole legal custody, one parent has all of the responsibility for making major decisions affecting the life of the child; however, when parents have joint legal custody, each parent shares in the responsibility for making decisions about their child’s life. As with physical custody, if one parent is deemed to be unfit for any reason, the court will grant sole legal custody to the other parent. However, if the parents are able to work together in the best interest of their child, the judge may grant joint legal custody to allow both parents to be active participants in their child’s life and upbringing. This is often better for the child but only if the parents can handle this responsibility without constant bickering and disagreements.
Can Children Decide Which Parent They Want to Live With?
Depending on the child’s age, the circumstances of the case and the jurisdiction in which the case is heard, some courts will take into consideration the child’s wishes as to where he or she wants to live. While the child will not make a final decision, the courts do recognize that they should at least hear the child’s wishes and take this into consideration when deciding physical custody.
Factors Used to Determine Custody
In addition to considering what is in the best interests of the child, the court may look at several other factors when deciding custody. These factors include but are not limited to:
- The child’s age
- The child’s overall health
- The parent’s ability to care for the child physically, financially and emotionally
- The relationship between the child and each parent
- The school and social environment of each residence
- Any history of physical abuse, violence or substance abuse
- The child’s preferences (depending on age and circumstances)
The courts no longer award custody to the mother automatically. It is assumed that both parents are capable of caring for the child; therefore, the courts will look at the totality of the circumstances when deciding custody issues.