Child Custody Basics
Child custody refers to the legal arrangement that determines where a child will live after their parents divorce or separate. Child custody also refers to who will make major decisions on their upbringing.
There are different types of custody arrangements, each with its own advantages and disadvantages. The court's decision on child custody will be based on the best interests of the child. When deciding on custody of a child, the court will look at a variety of factors.
This article provides an overview of child custody. For a handy, printer-friendly reference, download FindLaw's Guide to Child Custody.
Types of Child Custody
There are several types of child custody. Child custody includes physical custody, legal custody, joint custody, and sole custody. These types of child custody are outlined briefly below.
Physical and Legal Custody
Physical custody refers to the living arrangements of a child after their parents break up. One or both parents may have the responsibility of caring for and providing a home for the child.
Legal custody refers to the authority and responsibility for making important decisions on behalf of the child. This includes matters relating to health care, education, religion, and extracurricular activities.
Joint custody is a type of custody arrangement where both parents share legal and/or physical custody of the child. In a joint legal custody arrangement, the parents work together to make important decisions. They collaborate on major decisions like health care, education, and religious upbringing. Physical custody may be split 50/50 — or on a schedule that works for the parents and child.
Joint custody is often awarded when both parents are fit and able to care for the child. Each parent spends about an equal amount of time with the child. This arrangement allows the child to maintain a relationship with both parents. It also provides a sense of stability and consistency to the child.
Because joint custody requires a high degree of cooperation between the parents, courts are reluctant to order joint custody unless both parents agree and can show their ability to make joint decisions and cooperate for the child's sake.
Sole custody is a type of custody arrangement in which one parent has legal and physical custody of the child. The other parent has limited or no involvement in the child's life. They may have visitation rights but do not have decision-making authority like the other parent.
Sole custody is usually awarded when the other parent is "unfit" to be a parent. A parent may be unfit if they have a history of neglect, abuse, or endangerment of the child. A parent may also be unfit if they struggle with substance abuse issues, mental health issues, or can't provide a stable home for the child. This non-custodial parent may be ordered to pay child support.
Sole custody can be in the form of sole legal custody or sole physical custody. Usually, sole custody involves both. Sole physical custody means that one parent has the primary responsibility for the child's physical care. Sole legal custody means that one parent has the sole right to make decisions for the child.
Sole custody can provide stability and consistency to a child. But, depending on whether visitation is also ordered, they could miss out on a relationship with the other parent. The parent with sole custody might also feel overwhelmed by caring for the child alone.
Another option, although much less favored, is split custody. Split custody is when one parent has custody of one or more of the parties' children, and the other parent has custody of the other(s). Courts usually prefer not to separate siblings when issuing custody orders.
Child Custody and Unmarried Parents
Custody issues can arise for unmarried parents just as they do for married couples. When the child's parents are unmarried, the statutes of most states require that the mother get sole physical custody unless the father takes action to get custody. The father will need to establish his parental rights, or "parentage" through a legal proceeding.
Establishing a custody arrangement or parenting plan can help avoid custody issues. These documents can help the parents avoid disputes and provide stability for the child.
Custody arrangements outline each parent's rights and responsibilities. This might include the amount of parenting time, decision-making authority, and child support that will be paid for the benefit of the child. Parenting plans can include details about how children will be transported between homes, how holidays and vacations will be shared, and how conflicts will be resolved. Some states may require child custody and visitation to be outlined in a separate order from child support.
Child Custody Decisions: Factors to Consider
In deciding who will have custody, the courts consider various factors. The overriding consideration is always the child's best interests. Often, the main factor is which parent has been the child's "primary caretaker" (more on this below). If the children are old enough, the courts will take their preference into account in making a custody decision.
Although the "best interests" standard does vary from state to state, some factors are common in the best interests analysis used by the individual states, including:
- Wishes of the child (if old enough to capably express a reasonable preference)
- Mental and physical health of the parents
- Religion or cultural considerations
- Needs of the child relating to the child's education
- Need to continue a stable home environment
- Support and opportunity to interact with members of an extended family of either parent
- Interaction and interrelationship with other members of the household
- Adjustment to school and community
- Age and sex of the child
- Parental use of excessive discipline or emotional abuse
- Evidence of parental drug, alcohol, or sex abuse
- The well-being of the child
Once the court makes a decision, it will issue a court order laying out the child custody arrangement.
Determining the "Primary Caretaker" of the Child
Some family courts allow a preference for the parent who can show that they were a child's primary caretaker during the course of the marriage.
When determining who is the primary caretaker, the court will look at caretaking responsibilities:
- Bathing, grooming, and dressing
- Meal planning and preparation
- Purchasing clothes and taking care of laundry responsibilities
- Health care arrangements
- Fostering participation in extracurricular activities
- Teaching reading, writing, and math skills
The factors change depending on state law. Some states consider things like exposure to second-hand smoke and volunteering in the child's school.
It's important to note that one gender is not preferred over another for determining which parent is the primary caretaker. In other words, mothers are not preferred over fathers. When it is clear that both parents shared responsibilities equally, the court will fall back on the best interests standard.
Get Child Custody Case Help From an Attorney
Perhaps the most emotionally difficult part of a divorce for couples with kids is figuring out who gets custody and how it's arranged. Child custody and visitation also come into situations where the parents are not married.
It's important to know your state laws and legal rights on child custody. A family law attorney can help provide valuable legal advice and guide you through the legal process. They can also help you interpret child custody laws in your state.
Make sure you're protecting your parental rights and ensuring the best outcome for your children by discussing your case with an experienced child custody attorney near you today.
Can I Solve This on My Own or Do I Need an Attorney?
- Both parents can seek custody of their children — with or without an attorney
- An attorney can help get the custody and visitation agreement you want
- An attorney will advocate for your rights as a parent
A lawyer can help protect your rights and your children's best interests. Many attorneys offer free consultations.
Don't Forget About Estate Planning
Once new child custody arrangements are in place, it’s an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and provide for your children. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.