Republished with Permission © 2011 Nolo.
Learn the difference between legal custody, physical custody, sole custody, and joint custody.
Physical custody means that a parent has the right to have a child live with him or her. Some states will award joint physical custody to both parents when the child spends significant amounts of time with both parents. Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine.
Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives will have sole physical custody, with visitation to the other parent.
Legal custody of a child means having the right and the obligation to make decisions about a child’s upbringing. A parent with legal custody can make decisions about schooling, religion, and medical care, for example. In many states, courts regularly award joint legal custody, which means that the decision making is shared by both parents.
If you share joint legal custody with the other parent and you exclude him or her from the decision-making process, your ex can take you back to court and ask the judge to enforce the custody agreement. You won’t get fined or go to jail, but it will probably be embarrassing and cause more friction between the two of you — which may harm the children. What’s more, if you’re represented by an attorney, it’s sure to be expensive.
If you think you have circumstances that make it impossible to share joint legal custody (the other parent won’t communicate with you about important matters or is abusive), you can go to court and ask for sole legal custody. But, in many states, joint legal custody is preferable, so you will have to convince a family court judge that it is not in the best interests of your child.
One parent can have either sole legal custody or sole physical custody of a child. Courts generally won’t hesitate to award sole physical custody to one parent if the other parent is deemed unfit — for example, because of alcohol or drug dependency, a new partner who is unfit, or charges of child abuse or neglect.
However, in most states, courts are moving away from awarding sole custody to one parent and toward enlarging the role a divorced father plays in his children’s lives. Even where courts do award sole physical custody, the parties often still share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule. In that situation, the parents would make joint decisions about the child’s upbringing, but one parent would be deemed the primary physical caretaker, while the other parent would have visitation rights.
It’s understandable that there may be animosity between you and your ex-spouse. But it’s best not to seek sole custody unless the other parent causes direct harm to the children. Even then, courts may simply allow supervised visitation, while still ordering joint legal custody.
Parents who don’t live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody may be:
- joint legal custody
- joint physical custody (where the children spend a significant portion of time with each parent), or
- joint legal and physical custody.
It is common for couples who share physical custody to also share legal custody, but not necessarily the other way around.
Joint Custody Arrangements
When parents share joint custody, usually they work out a schedule according to their work requirements and housing arrangements and the children’s needs. If the parents cannot agree on a schedule, the court will impose an arrangement. A common pattern is for children to split weeks between each parent’s house or apartment. Other joint physical custody arrangements include:
- alternating months, years, or six-month periods, or
- spending weekends and holidays with one parent, while spending weekdays with the other.
There is even a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out, spending their out time in separate housing of their own. This is called “bird’s nest custody.”
Pros and Cons of Joint Custody
Joint custody has the advantages of assuring the children continuing contact and involvement with both parents. And it alleviates some of the burdens of parenting for each parent.
There are, of course, disadvantages:
- Children must be shuttled around.
- Parental noncooperation or ill will can have seriously negative effects on children.
- Maintaining two homes for the children can be expensive.
If you do have a joint custody arrangement, maintain detailed and organized financial records of your expenses. Keep receipts for groceries, school and after-school activities, clothing, and medical care. At some point your ex may claim she or he has spent more money on the kids than you have, and a judge will appreciate your detailed records.
For more information on child custody arrangements, see Building a Parenting Agreement That Works: How to Put Your Kids First When Your Marriage Doesn’t Last, by Mimi E. Lyster.