Types of Child Custody

Separating parents' rights will vary depending on the type of child custody and visitation. This article explains the different types of child custody, including:

  • Legal custody vs. physical custody
  • Sole custody vs. joint custody

You can find information about the different types of custody and parenting time below.

Types of Child Custody: At a Glance

Parents or a family court judge will decide how parents share (or do not share) legal and physical custody. The best interest of the child should guide that decision.

Child custody orders can also be revisited in court. This may happen if material circumstances have changed since entry of the last order.

Sole vs. Joint Custody

"Sole custody" refers to an arrangement where one parent has both legal and physical custody of the child. The non-custodial parent generally has visitation rights, also called parenting time. The parent with sole physical custody will likely be entitled to child support if requested by the custodial parent.

Typically, sole custody arises because a judge determines that the non-custodial parent is less fit to parent. In other cases, a parent may choose to be less involved and give the other parent sole custody of a child.

Most child custody arrangements are "joint custody," or "shared custody." Both parents have joint legal custody, even if one parent has more time with physical custody. For example, a child may live primarily with one parent. But this doesn't necessarily mean the parents do not have joint legal custody.

Parents with shared custody may also have equal joint physical custody. This means they spend equal time—or very close to equal time—with their child. Most courts find that joint child custody arrangements are in the best interests of the child. The court will look at a variety of factors to determine what is in the best interest of the child's well-being.

Legal Custody

Legal custody is the court-granted right to make major decisions on behalf of the child. This includes:

  • Choice of schools
  • Religious education
  • Health care
  • Discipline
  • Medical care
  • Medical treatment
  • Other major decisions affecting the child's upbringing

In most child custody cases, the parents share joint legal custody of their children.

If parents share joint legal custody, one parent cannot intentionally exclude the other from the decision-making process. Excluding a parent with joint legal custody from participating in the decision-making process could result in a finding of contempt of court. The parent alleging a violation of a custody order would file a motion, sometimes called a show cause. This motion requires the other parent to appear before the court and explain the order violation. The process is necessary to protect the parent's rights and to enforce the order.

Sometimes the court grants only one parent legal custody (also called "sole legal custody" or “full custody"). The non-custodial parent may have visitation rights. However, a parent with sole custody does not need to consult with the other parent about important decisions affecting the child. The court may order sole legal or full custody to one parent if a judge finds that it is in the best interest of the child.

Physical Custody

If you are divorced and your minor children live primarily with you, you have primary physical custody. Family courts tend to award one parent primary physical custody and the other parent visitation, or "parenting time."

Courts and state laws increasingly favor joint parenting plans and arrangements that are agreed upon by the parents themselves. More and more, parenting-time schedules are drafted so that children spend more overnights with the non-custodial parent. Utah's custody and visitation statute, for example, has an equal parent-time schedule. A court may order this option in cases where the parents have shown they can each care for the children 50% of the time.

The most common custody and visitation arrangement used in family courts is as follows:

  • One parent has primary physical custody
  • The non-custodial parent has a generous amount of time with the kids, including frequent overnights
  • Both parents have shared legal custody of the child

This situation presumes that both parents are currently capable of caring for the children. Of course, that is not always the case. If one parent has sole physical custody and sole legal custody, visitation can be worked out between the two parents. This will typically involve detailed logistics.

Parents with visitation rights usually spend every other weekend, certain holidays, and summer vacations with their child. If parents cannot agree, the court will step in to decide visitation schedules through a court order.

Grandparents' Custody Rights

A child's grandparent may also seek custody of the child. They can file a petition with the court in certain states. Many states grant grandparents the right to see and spend time with their grandchildren in certain circumstances.

Get Legal Advice About Child Custody

Working through the details of your child's custody arrangement with your child's other parent can be stressful. This is especially true if there is animosity between you and your ex. It's important to know how you might determine child custody arrangements. It's also important to know what you can do to advocate for your parental rights and your child's rights.

To learn more about the type of child custody that may work best for your family, talk to an experienced family law attorney in your area. They can provide you with valuable legal advice and help you navigate this highly detailed area of law.

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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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