Divorcing parents' rights will vary depending on the type of child custody and visitation they have. This article explains the differences between types of custody, including:
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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 if circumstances change.
Sole vs. Joint Custody
"Sole custody" refers to an arrangement where one parent has both legal and physical custody of the child. The noncustodial parent generally has visitation, also called parenting time.
Typically, sole custody arises because a judge determined 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.
Most child custody arrangements are "joint custody," or "shared custody." Both parents have equal legal custody, even if one parent has more time with physical custody. But parents with shared custody may also have roughly equal physical custody.
Legal Custody
Legal custody is the court-granted right to make important life decisions on behalf of the child. This includes choice of schools, religious education, health care, discipline, and more. In most child custody cases, both parents are granted legal custody of their children.
If parents have joint legal custody, one parent cannot intentionally be excluded from the decision-making process. That would be considered contempt of court and that parent could go back to court to protect their rights.
Sometimes only one parent is granted legal custody (also called "sole legal custody"). The noncustodial parent may have visitation rights, but they do not have a right to be consulted on important decisions. This could happen if a judge has reason to believe it is in the best interests of the child to do so.
Physical Custody
If you are divorced and your minor children live with you most of the time, then you have primary physical custody. Family courts tend to award one parent primary physical custody and the other parent visitation. (Visitation may also be called parenting time).
Courts and state laws increasingly favor joint parenting plans and arrangements set between the parents themselves. More and more parent-time schedules are drafted so that children spend more overnights with the noncustodial parent. Utah's custody and visitation statute, for example, has an equal parent-time schedule that is an option that the court may order in cases where the parents have shown they each are able to care for the children 50% of the time.
The most common custody and visitation arrangement is:
- One parent has primary physical custody
- The noncustodial parent has generous time with the kids, including frequent overnights
- Both have shared legal custody
This situation presumes that both parents are currently capable of caring for the children: that is not always the case, of course. If one parent has sole physical and legal custody, visitation can be worked out between the two parents since it typically involves detailed logistics. Parents with visitation rights usually spend every other weekend, certain holidays, and summer vacations with their child. If parents cannot agree, then the court will step in to decide.
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.
