Family & Relationships

Child Custody in Divorce: What You Should Know

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If you’re a divorcing parent with kids, you may face challenging decisions, questions and discussions regarding their care — with the spotlight on issues such as primary custody, joint custody and/or legal guardianship, just to name a few. Here are some important child custody terms to keep in mind, as well as potential scenarios you may encounter to help you work through the best solution for your family.

The difference between legal custody and physical custody

Divorce comes with its own dictionary of legal terms and descriptions, which can be confusing and overwhelming at first. So let’s start with the difference between physical and legal custody, which is important to distinguish prior to making your custody request:

  • Physical custody is defined as the right to have the child live with you. This involves the day-to-day care of the child and determines where the child will live. When the child lives primarily with one parent, that parent is recognized as the “custodial” parent with full physical custody or sole physical custody. The other parent is considered the “non-custodial” parent and would be awarded visitation rights.
     
  • Legal custody of a child gives the parent the right and obligation to make decisions regarding the child’s upbringing. These decisions can include where a child will attend school, the medical care they receive and in what religion they will be raised. It also relates to the general welfare of the child. There are two different types of legal custody: sole legal custody and joint legal custody, which is most often awarded unless one of the parents is deemed incapable of taking care of the child.

The rules regarding legal and physical custody vary by state and individual circumstances, so it's generally best to involve an attorney to ensure the best outcome for your kids. When deciding on custody, courts can make any number of arrangements. For example, some parents may share physical but not legal custody, or vice versa.

Types of child custody defined

There are a variety of child custody scenarios, depending on each parent’s involvement and what a court may decide:

  • Sole custody (sometimes called full custody) means only one parent has the legal right to act on your child's behalf, which can apply to both physical and legal custody. This often means your child spends all or a majority of time with one parent. In some cases, a judge may grant sole custody to a parent in a situation where the other parent is deemed unfit or unable to take responsibility for the child. These are situations where there may be neglect, drug or alcohol abuse, child abuse, or a history of violence or mental instability is a factor.
     
  • Joint custody is an arrangement where both parents may share joint legal custody, joint physical custody or joint legal and joint physical custody. This arrangement allows for the responsibility to be shared without overburdening one parent. When the children are in the actual physical custody of a parent, that parent has the responsibility for ensuring that the children are fed and properly cared for and taken to school. That parent must also take responsibility for any medical or dental emergencies which arise.

    This arrangement can be established either by a parenting agreement, or it can be ordered by the judge. A written joint custody agreement can be helpful to establish a foundation for a successful co-parenting relationship. It should be flexible to allow room for adjustment as the children grow and their needs change.

    Courts most often award joint custody to allow each parent to develop a bond with their child, even when the bond between parents has been broken.
     
  • A split custody arrangement is where custody is shared equally — or at least the visiting parent has substantially more time with the children than in the customary visitation agreement. This type of custody can be divided on a week-to-week or monthly basis. For example, one parent can be the custodial parent during the school year, and the other during summer vacation.

    There are some split custody arrangements where the children stay in the former family residence and the parents have separate residences and take turns moving in and out of the family residence to be with the children. This is also referred to as “Bird’s Nest Custody” or “Bird Nesting.”

    In certain situations, split custody may also be an option in which each parent takes custody of a different child. This arrangement is generally not favored by judges because they are reluctant to split up siblings.
     
  • Third-person custody is when a court awards custody of the children to a third party if they have sought custody. Usually, this is a grandparent or other close relative. The third party may have become the primary caregiver for a child or children when circumstances arise whereby the parents are unable to care for the children. This may be due to the death of the biological parents, or where both parents are deemed unfit.

    As in any custody matter, third-party custody is not a permanent arrangement. The court can rescind or modify non-parental custody at a later date. Only the state can terminate parental rights. Biological parents who are determined to regain custody of their children often prevail if they can prove to the courts that they are no longer deemed unfit.

How custody decisions are made

In a divorce, custody decisions are typically resolved in one of two main ways:

  1. Parents reach an agreement together as a result of informal settlement negotiations or through out-of-court alternative dispute resolution proceedings like mediation.
  2. The court decides (usually a family court judge). Almost all courts use a standard that gives the "best interests of the child" the highest priority. This depends on many factors, including the child's age; the parent's health and lifestyle; the parent's ability to provide basic needs such as food, shelter and medical care; and the child's preference.

Additionally, even if a formal divorce action has not yet been filed, a spouse can ask the court for temporary orders to establish things like child custody and visiting arrangements in an effort to ensure financial needs, the safety of the family and best interests of the child.

Protecting the welfare of your child during a divorce involves many legal, financial and personal factors that are rarely easy to resolve. But knowing what custody options you have and the stipulations for each can help reduce the stress and confusion of determining what’s best for your child.

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