Shared Parenting vs. Sole Custody

A primary concern of a parent facing a breakup may be which parent will gain custody of their minor children. Each state's law may vary somewhat. Many parents find the terminology in court to be confusing.

When parents can work together to make decisions regarding their children, joint legal custody (or shared parenting) may provide a good way for both parents to remain involved in their child's life. In some circumstances, parents may agree on sole legal custody with one parent. Both joint custody and sole custody provide methods for co-parenting after a divorce or separation.

Whether joint (shared) or sole custody is best for your family depends on a number of factors. Continue reading to learn more about shared parenting and sole custody arrangements.

Are the Parents Married or Unmarried?

While parents are married, the law provides for joint legal custody with both parents. In other words, during a marriage, either parent can make important decisions on a child's behalf. Either parent can sign a permission slip or authorize health care treatment. The parties reside together and have no need for a parenting time schedule.

When parents end a marriage, they may file a custody agreement to address child custody, parenting time, and other matters. If they do not agree, then they will become involved in a contested divorce. When a divorce is contested, the court will decide what form of custody and parenting time is in the child's best interest.

When unmarried parents have a child, the law provides that the mother has sole custody of the child. The mother may permit another parent to have substantial access and to make decisions related to the child. But her permission is voluntary and can be withdrawn. An unmarried parent who is not the child's mother must file an action in court to establish their own parental rights.

The Difference Between Shared Parenting and Sole Custody

In a sole custody case, one parent gains exclusive physical and legal custody over the couple's child. The “custodial parent" has control over parenting decisions. This includes day-to-day parenting choices. The custodial parent's address will be the child's address for school purposes.

Sole custody arrangements are most common when the parents live far apart. They also occur when the parents don't communicate well or when one parent has been deemed unfit. The child will usually live most of the time with the parent with sole custody. A parenting time plan or visitation schedule will allow regular time with the non-custodial parent. Often, the court will indicate that the sole legal custodian also has physical custody of the child since the child resides with this parent most of the time.

Some courts will provide a "standard" parenting time or visitation schedule for the non-custodial parent. These documents may provide a default schedule that the parties or the court can choose in a given case. A common "standard" schedule for the non-custodial parent is an alternating weekend schedule with one or two set times during the week.

In a shared or joint custody case, both parents share decision-making responsibilities for the child. In some states, both parents will be designated as the “residential parent and legal custodian." Advocates of joint custody or shared parenting arrangements believe that children are better served when both parents play a large role in their life.

The parents can enter into written parenting agreements or plans, regardless of whether they have shared or sole custody. Parenting agreements help parents outline how they will make decisions for their child. They also include the parenting time schedule.

Shared or joint custody cases often provide for an equitable sharing of parenting time. Equitable parenting time does not necessarily mean equal parenting time. For example, when parties live a fair distance apart, they may want to share legal decision-making for the child. The distance makes an equal parenting time schedule burdensome for the child. On the other hand, let's say the parents live a few blocks away from each other. In that case, they may find equal parenting time practical and beneficial to the child.

An agreement for equal parenting time can be difficult for both children and parents in terms of scheduling and logistics. Some find that young children have a difficult time with long commutes between parents' homes. Parties often need to factor the distance between residences, workplaces, and schools with a child's unique needs. Equal parenting time may also cause an adjustment in child support payments.

In most states, child support calculations provide a reduction of child support obligations when the parent paying support spends more time with the child. To put it another way, if a child support-paying parent spends more time with the child, they may claim the child's increased presence in their home increases household expenses. In some states, this may provide a reason to deviate from the child support calculation guidelines of the state.

Often the terms “shared parenting" and “joint custody" are used interchangeably. You should check the law in your state. In most instances, shared parenting or joint custody does not require a 50-50 split in parenting time. The “primary sharing" referred to in shared parenting arrangements is the right to share equally in decisions regarding the child. In some situations, joint custody may reflect a situation where the parents split parenting time equally. You will want to understand the terms that appear in any agreement or court document.

When Joint or Shared Custody Should Be Considered

Most state laws do not presume that joint or shared custody is in the best interests of the child unless both parties have agreed to it. Almost all states allow for shared parenting plans when both parents agree, and the court approves the terms. Ohio has a comprehensive statute that requires the court to consider shared parenting when either parent files a plan for consideration.

For shared parenting to work, both parents should be able to communicate well with each other to make important decisions about their child. If a court finds that a parent is unfit or has engaged in domestic violence, it may not grant joint or shared custody.

A joint or shared parenting plan may include the following:

  • The child's residence for schooling
  • Parenting time schedule (including holidays and vacations)
  • Visitation rights of others (grandparents and significant others)
  • Financial responsibilities (child support and the child's medical bills)
  • Educational decision-making
  • Health care decision-making
  • Extracurricular and social activities
  • Allocation of the dependent tax claim

Parents should also consider how they would resolve disputes. Many parenting plans include a process for resolving disagreements when parents can't come to a compromise. For example, the parents may agree that in major decisions on health care, the parties shall consult and try to reach agreement. If they cannot agree, then one party shall make the final decision.

A handful of states have adopted laws that include a rebuttable presumption for joint or shared custody and/or equal parenting time. Several other states have considered legislation of this nature in recent years. Evidence of domestic violence by a parent can rebut the presumption for joint custody in such states.

Adjusting Parenting Plans Over Time

The child's well-being must be central to any parenting plan. As a child grows, these needs will change over time. For example, a young child might need to spend most of their time in one household or only gradually expand to similar time in both households. A teenager, on the other hand, may be able to move between parents more often and with greater ease.

For these reasons, many parents today shape their shared parenting agreements to match a child's development. They provide for longer periods of time with each parent when the child is young and shorter periods as the child grows. Additionally, a change of circumstances regarding a child's medical care, educational needs, or social obligations may mean that a parenting plan must be adjusted. Parents may consider adding provisions to their agreement for changing a parenting plan. Courts may do the same in the custody order. Sometimes parents agree to mediate proposed changes before filing a motion in court.

What Happens if Parents Cannot Agree on the Type of Custody?

Parents have several options when they do not agree on custody or the need to change terms in a parenting plan.

The parents may hire a family law mediator. A mediator is a neutral party who facilitates a conference or meeting of the parents and/or their attorneys. Mediation permits the parties to hear each other's views in a controlled setting. They can then negotiate an agreement both find acceptable. If they reach an agreement, the mediator will assist them in writing up the terms. The attorneys can then draft the agreement into an agreed court order to present to the court.

If the parties do not elect to use mediation or do not agree after mediation, then one of them will file a motion in court. A parent's motion for joint or sole custody or a modification of the parenting plan must be served on the other parent. The court will schedule the matter for a hearing. At the hearing, both sides can provide testimony and other evidence. The magistrate or judge will then issue a court order of custody and parenting time. The order will address all issues raised in the motion. Courts issue custody decisions based on set legal standards. These standards may vary from state to state. Most courts use some form of best interest standard. That means the court will weigh and decide what outcome is in the child's best interest.

Shared Parenting or Sole Custody? Get Professional Legal Help

Custody and parenting plans provide legal ways for parents to remain involved in a child's life after a divorce or break-up. If you're considering matters of child custody and parenting time, you may seek legal advice. Inform yourself about your state laws on shared parenting, legal custody, and parenting plans. A skilled family law attorney can help answer your questions and provide information about custody laws in your area.

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