Types of Child Custody

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 What Custody Options are Available upon Divorce or Separation?

Divorce or legal separation is a major life event involving several related legal issues, including child support, custody, and visitation. Child custody is often one of the most important legal issues that must be resolved during divorce. There are several potential child custody arrangements. The goal is to choose those in the child’s best interests.

What are the Different Types of Child Custody?

The following are different custody arrangements available to parents upon divorce or separation. The exact definition of these may depend on the state in which you live and the particular situation the child is in:

Sole Legal Custody

Legal custody gives a parent the legal right to make decisions about the child’s upbringing. These can include decisions on important matters such as a child’s schooling, healthcare, and religious upbringing. Legal custody can be granted to just one parent (i.e., sole legal custody), or both can have an equal right to make decisions concerning the child’s life (joint legal custody). In many states, joint legal custody is the default option.

Sole legal custody is best for situations where one parent is unavailable or unable to make decisions on short notice. It is often necessary in parental instability, substance abuse, child abuse, neglect, abandonment, or similar situations. Factors the court considers to determine if sole legal custody is appropriate for each situation include:

  • If sole legal custody would benefit the child
  • If it is practical for each parent to make decisions for the child
  • If a parent is unfit or could pose a danger to the child
  • If one parent is seeking sole legal custody to exclude the other from the child’s life

While these factors are crucial in all legal custody disputes, laws and practices depend from state to state. Be sure to consult your state’s custody guidelines for further information.

Joint Legal Custody

Since joint legal custody gives each parent the right to make important decisions, and both have to agree with each other’s decisions, granting legal custody to the parent with primary physical custody is typically more feasible.

If the following factors apply to the situation, however, the court may find that joint legal custody might be more appropriate:

  • The parents are willing and able to cooperate
  • If the child has special needs that require more attention, such as education or medical issues, it would be better if both parents were involved
  • The best interest of the child is to award joint legal custody.

If joint legal custody is granted, each parent will have access to the child’s personal records, including school or medical records, and can contribute equally to any major decisions.

Daily decisions, though, such as when to do homework, do not have to be agreed upon. This is because the parent with current physical custody of the child will be responsible for these day-to-day decisions.

Sole Physical Custody:

With sole custody, only one “custodial parent” has custody for most of the time. The other parent is typically permitted only child visitation rights. Modernly, courts are moving away from this arrangement unless the child is in clear danger in one parent’s household. Some courts get around their distaste for sole physical custody arrangements by giving generous visitation rights to the noncustodial parent.

Although courts do tend to prefer joint physical custody, sole custody may be granted to the primary custodial parent when the following situations occur:

  • One parent has become ill or disabled
  • The court finds one parent to be unfit to raise a child
  • One parent has been incarcerated or has a negative criminal record
  • There is a history of abuse or neglect

Sole custody arrangements are usually the least disruptive of a child’s life as they provide more consistency than joint arrangements do. However, sole physical custody can result in a limited connection between a child and the noncustodial parent. Moreover, the parent who does not have physical custody and instead has to live with a set of visitation schedules can become angry, leading to heightened animosity between the parents.

Conversely, if the noncustodial parent is inconsistent in visiting with the child, spending less time with the child than the parent has the right to spend, the child’s feelings will get hurt, and the relationship between the parents will likely be hurt.

Joint Physical Custody:

Physical custody involves the right to have a child physically live with you. Most states prefer that parents agree to joint or shared physical custody, where a child is assumed to live with each parent for relatively equal amounts of time. For joint physical custody to work, parents must live close to one another. Also, parents must have a workable and mature relationship to transfer the child peacefully from parent to parent.

The most common arrangement is for the child to reside primarily with one parent (residential custody) and spend time with the other on some weekends and overnights, extended summer visits, and holidays.

This type of child custody assures children of continuing contact and involvement with both parents and alleviates some of the burdens of parenting since there are two parents fully responsible for the child and able to take care of the day-to-day needs of the child.

Can I Change to a Different Type of Child Custody?

The needs of the children are subject to change over time as they age and have different requirements that must be met. Courts understand this and are generally willing to change a custody agreement when needed.

Modification of a child custody order can only be achieved by making an appropriate request A child custody order can only be modified by making an appropriate request before the court. The court will review the changes occurring in the parents’ and children’s lives and adjust the custody arrangement appropriately.

If the parents agree on the changes they would like to see made, the judge will usually allow them to make the choice and will legalize and enforce whatever changes they wish to see. The court does this because, barring any evidence showing otherwise, the court assumes the parents are the people most knowledgeable about the children’s best interests.

It is important to note that changing child custody changes should always follow the court’s legal procedures. Parents should not attempt to change the type of custody independently outside of the court process. This can lead to charges that one or both parents are violating the terms of the original child custody arrangement.

There is a risk that a parent could lose custody or visitation rights. A judge should approve all custody changes before moving forward with implementing the changes.

Should I Contact a Lawyer If I Have Issues with Child Custody?

Courts are involved in determining the right custody arrangements for your child. If you have concerns about who will make decisions concerning your child, you should contact a child custody lawyer to help inform the court about your child’s best interests regarding who can make key decisions for them, where they should spend their time, and with whom.

An experienced and knowledgeable child custody lawyer can provide legal advice and represent you during court hearings.


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