Although people sometimes refer to “child custody” in that general term, there are actually different types of custody.
Physical custody means that a parent has the right to have a child live with him or her. Joint physical custody works best if parents live relatively close to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine.
Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives (called the “custodial” parent) will have sole or primary physical custody, and the other parent (the noncustodial parent) will have the right to visitation or parenting time with his or her child.
Legal custody of a child means having the right and the obligation to make decisions about a child’s upbringing. A parent with legal custody can make decisions about the child’s schooling, religious upbringing and medical care, for example. Courts regularly award joint legal custody, which means that the decision making is shared by both parents.
If you share joint legal custody with the other parent and you exclude him or her from the decision-making process, your ex can take you back to court and ask the judge to enforce the custody agreement. You won’t get fined or go to jail, but it will probably be embarrassing and cause more friction between the two of you — which may harm the children. What’s more, if you’re represented by a legal expert, it’s sure to be expensive.
If you believe the circumstances between you and your child’s other parent make it impossible to share joint legal custody (the other parent won’t communicate with you about important matters or is abusive), you can go to court and ask for sole legal custody. But, in many cases, joint legal custody is preferred, so you will have to convince a family court judge that it is not in the best interests of your child.
One parent can have either sole legal custody or sole physical custody of a child. Courts generally won’t hesitate to award sole physical custody to one parent if the other parent is deemed unfit — for example, because of alcohol or drug dependency or charges of child abuse or neglect.
However, in most cases, courts are moving away from awarding sole custody to one parent and toward enlarging the role both parents play in their children’s lives. Even where courts do award sole physical custody, the parties often still share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule. In these situations, the parents would make joint decisions about the child’s upbringing, but one parent would be deemed the primary physical caretaker, while the other parent would have visitation rights under a parenting agreement or schedule.
It goes without saying that there may be animosity between you and your (soon-to-be) ex-spouse. But it’s best not to seek sole custody unless the other parent truly causes direct harm to the children. Even then, courts may still allow the other parent supervised visitation.
Parents who don’t live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody may be:
- joint legal custody
- joint physical custody (where the children spend a significant portion of time with each parent), or
- joint legal and physical custody.
Grandparent Visitation and Custody
Basics of what a court considers when grandparents seek visitation or custody of a child, a determination that is primarily based on the child’s needs and best interests.