The Various Types of Child Custody

The legal terms for child custody can be confusing. There are several different types of child custody. 

Which type of child custody is best for your particular situation?

This article will address the various types of child custody: physical custody, legal custody, sole custody, and joint custody. Each section will also provide a brief overview of the benefits and drawbacks of each type.

Deciding Custody in the Best Interests of the Child

It is important first to understand how the court decides custody arrangements. The court will use the best interests of the child standard. The court will consider several different factors to make this determination, such as:

  • The child's needs
  • Each parent's financial circumstances, as related to their ability to maintain stability for the child
  • The child's living situation
  • Any patterns of domestic violence in the home

Many courts assume that joint custody is in the best interests of the child. However, if the court deems a parent “unfit," they may lose their rights to joint custody.

Determining whether a parent is unfit is a serious matter. The court will consider several factors. The court might deem a parent unfit if they have a history of neglect, abuse, and endangerment of the child. The court may also deem a parent unfit if they struggle with issues such as substance abuse or mental illness, or generally lack the ability to provide a safe and stable home for the child.

Physical Custody

Physical custody is one of the most commonly understood forms of child custody. Physical custody refers to the living arrangements for a child after a divorce or separation. Sole physical custody means that one parent is primarily responsible for the child's physical care. Joint physical custody means that both parents share physical custody of the child. This is typically on a 50-50 basis, or very close.

In most situations, the court will award joint physical custody when the child's parents live nearby. If the parents live too far away from each other, the strain on the child may play a role in determining custody.

Both sole physical custody and joint physical custody have pros and cons. Sole physical custody may provide stability and consistency for the child. It allows for clear decision-making and a reduction of conflict between co-parents. However, the child might miss out on developing a close relationship with the non-custodial parent. The other parent might also feel overwhelmed with the sole responsibility of caring for the child.

In joint physical custody arrangements, the child has the opportunity to maintain strong relationships with both parents. The child is able to maintain substantial contact with both parents. This arrangement can also reduce the financial responsibility of each parent. However, it can be challenging to coordinate schedules and transportation. It requires the ability to communicate and co-parent effectively.

Legal Custody

Legal custody refers to the authority and responsibility of making important decisions on behalf of a child. These life decisions include education, health care, religion, and extracurricular activities. Sole legal custody means that one parent has the sole right to make decisions for the child. Joint legal custody means that the parents share in making these major decisions.

If one parent in a joint legal custody arrangement takes decision-making powers away from the other parent, the other parent can go back to court to get a judge to enforce the joint legal custody order. In some situations, the court may award the non-offending parent sole custody.

You may feel that the other parent in the joint legal custody arrangement is making it hard or impossible to make decisions. You might feel that they are making it difficult simply to spite you, and not because they have a valid disagreement with the decisions. If so, you can go back to court to request sole legal custody of your child. However, many states and courts are reluctant to grant sole legal custody. They may prefer that both parents look out for the best interests of the child rather than just one parent.

Sole Custody

When one parent is unfit to parent a child, the court will grant the other parent sole custody. Sole custody is a type of custody arrangement where one parent has legal and/or physical custody of the child. The unfit parent has limited or no involvement in the child's life. When the court awards one parent sole custody, the non-custodial parent usually must pay child support to the custodial parent to help cover the costs of raising the child.

Sole physical custody is often awarded in divorce proceedings if the court deems one parent unfit. If one parent lives with a new partner the court deems unfit, the court may award sole physical custody to the other parent.

Recently, courts have allowed joint legal custody even when the court awards sole physical custody to one parent. In addition, even if the court awards sole physical custody, there has been a push to allow more lenient visitation rights for the parent that does not live with the child.

Joint Custody

Joint custody is a type of custody arrangement where both parents share legal and/or physical custody of the child. Joint custody can also be referred to as “shared custody." In joint legal custody arrangements, the parents work together to make major decisions about the child's upbringing. These include health care, medical care, education, and religious upbringing. Parents can split physical custody on a 50-50 basis or on a schedule that works for both parents. The parent with less physical custody time has "visitation" or "parenting time" with the child, as detailed in the court order.

For couples that share joint physical custody, it is common for them to share joint legal custody as well. However, the opposite is not necessarily the case. Parents that share joint legal custody will not always share joint physical custody.

Joint Custody Arrangements

Parents that share joint physical custody of a child, often draw up a joint custody arrangement (sometimes called a parenting agreement or parenting plan). They will present this custody agreement to the judge to ratify. This arrangement is based on the parents' work schedules, the child's school schedule, and the child's needs. The agreement will address how the parents will split or share parenting time.

Parents may live close to each other, meaning neither house is a problem for getting the child to school. For these parents, it's common to rotate alternating weeks with the child. In addition, when parents live a bit further apart, it can be common to have a joint physical arrangement where the child will stay primarily with one parent, but split weekends and holidays between the two.

Lastly, some rare custody arrangements allow the child to remain in the family home while the parents move in and out according to the custody arrangement. This is often called a "bird's nest custody arrangement," and can be beneficial to young children that attach their emotions to the family home.

Joint Custody Pros and Cons

One of the main advantages of joint child custody arrangements for the children is that they experience a significant amount of contact with both of their parents. They can continue their relationships on both sides. Joint custody also has the advantage of placing an equal load on both parents.

However, joint custody arrangements also have their disadvantages. For instance, the children subject to the arrangement must be continually taken back and forth between homes. If either parent has any ill will towards the other, it can have negative side effects on the children. Lastly, it can become expensive to keep two homes for a child.

Which Child Custody Type Works for You?

Child custody cases are legally complicated and put quite a bit of emotional stress on parents and children. Getting professional feedback from an expert can help you make the right decisions. A family law attorney can help explain how custody works and go over the different types of child custody with you. They can advise you on your legal rights and provide helpful legal advice.

If you have questions about the various types of child custody and which type may be best for your child, your best option is to speak with a local family law attorney.

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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.

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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.

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