Types of Custody

Jurisdiction in a custody case is usually determined by the address of the child. If the child moves back and forth bet The difference between legal custody, physical custody, sole custody, and joint custody:

Legal Custody

Legal custody of a child means having the obligation and the right to make decisions about a child's rearing. A parent with legal custody can make decisions about schooling, religion, and medical care. In some states, courts sometimes 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, you can go to court and ask for a change in custody so that you have sole legal custody. But, in many states, you will have to overcome a presumption that joint legal custody is preferable.

Physical Custody

Physical custody means that a parent has a 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. 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. 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.

Sole Custody

How can I keep custody of my daughter when her father has a criminal record?

One parent can have either sole legal custody or sole physical custody of the child. 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.

Courts generally won't hesitate to award sole physical custody to one parent if the other parent is deemed unfit -- for example, because of drug or alcohol dependency, a new partner who is unfit, or charges of child abuse or neglect.

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.

Joint 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.

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.

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

Bird's Nest Custody

Bird's nest custody is 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.

The terms "sole custody" and "joint custody" are somewhat generic.

They represent categories of custody, but custody itself is best understood as a continuum, as unique as the parents who divorce.

Imagine a continuum with parents who are completely cooperative at one end and a single parent raising children alone, with no involvement on the part of the other parent, at its other end. At the cooperative extreme, parents may live next door to each other and the children may go back and forth interchangeably. At the other, the non-custodial parent may have died or disappeared. While the former example is more usual than the latter, your family probably falls somewhere in between

Types of Custody

In general, legal custody refers to whether one or both of the parents make legal decisions regarding the child such as educational, medical or religious choices. A court can give parents joint legal custody, in which case they make such decisions together, or give one parent sole legal custody, in which case that parent makes decisions alone, although the other still has a right to be kept fully informed.Physical custody refers to the child's living arrangements. A court can give both parents physical custody, in which event they share parenting time on an approximately equal basis, or it can give one parent primary physical custody and the other more limited parenting time.

It is possible for a court to award joint legal and joint physical custody to the parents. However, a court can also award joint legal custody, but give one parent primary physical custody. On rare occasions as when one parent is mentally impaired but otherwise a positive influence, a court can award sole legal custody to one parent, with a shared physical custody arrangement.

Factors to Consider

What's best for your children depends on many factors.

You and your spouse would be good candidates for joint legal custody if:Both of you are good parents;

Each of you trusts the other to be a good parent;

Each of you has the maturity to set aside the personal differences that gave rise to the divorce because your primary focus is on doing what's best for your children;

and There is no history within your relationship of domestic violence or other control issues that would make joint decision-making difficult or impossible. The very worst place for children to be is at the center of ongoing conflict between their parents.

Parents Working Together

Regardless of whether or not joint custody is appropriate for your case, please understand that parents can and should attempt to work together in most cases, even when one parent has sole custody. There are unusual situations in which the other parent is so harmful that your duty, as a good parent, is to protect your children from him or her. Fortunately, this is rare. In the vast majority of cases, children of divorce will do best when both parents take a positive and active role, and each encourages an ongoing, meaningful relationship with the other parent.

The Importance of Consulting an Attorney

There are many ways in which custody issues impact divorce.

To explore the various types of custody in adequate detail and evaluate which may be best for your children, consult with a competent domestic relations attorney.

Please keep in mind that custody should be done right the first time. If you enter into a custody agreement that is inappropriate, or if the court is presented with inadequate information upon which to enter orders, the impact on your children can be negative. Even so, once custody orders are entered, they can be extremely difficult, and in some cases impossible, to modify.

This is true regardless of whether those orders were the result of negotiated settlement or litigation.

You could end up in court (or back in court if the case was initially decided by a judge) attempting to re-litigate issues you thought were settled. Worse yet, you might be unable to convince the court to change custody and visitation orders that harm your children.

Therefore, it is essential to focus from the outset on obtaining custody orders that best serve their needs.

Attorneys are expensive but children are priceless.

Even if you and your spouse are in agreement about custody and visitation, I recommend you consult with a competent domestic relations attorney before making any important decisions.

Temporary Custody

"De facto" (means "in fact") custody refers to who actually has custody of the child at this time. This can be different from "court ordered custody". In order to formalize custody before you begin litigation, you will need to file for temporary custody.Temporary custody will be based on the "best interests" of the child standard. It is not an "initial" award of custody. Instead it is temporary custody while you wait for the court to hold a hearing.

Sole Custody

- Custody is made up of: legal custody and physical custody. A person with legal custody has the right to make long range plans and decisions for the education, religious training, discipline, non-emergency medical care and other matters of major significance concerning the child's welfare. A person with physical custody has the child living primarily with them and they have the right to make decisions as to the child's everyday needs. Sole Custody is when both legal and physical custody are given to one parent. The child has only one primary residence.

Split Custody

- Split custody is easiest to describe in a situation where there are two children and each parent obtains full physical custody over one child. Some of the considerations that may bring about this result are age of the children and child preference.

Joint Custody

- Joint Custody is actually broken down into three categories: Joint Legal, Shared Physical, and Combination.

Joint Legal custody is where the parents share care and control of the upbringing of the child, but the child has only one primary residence.

In Shared Physical Custody the child has two residences, spending at least 35% of their time with the other parent.

Additionally, you can make your own special joint custody agreement that is any combination of Shared Physical and Joint Legal Custody. One example of this is when there is one residence for the child and the parents live with the child there on a rotating basis.

The court looks very closely at Joint Custody agreements. The most important factor to Joint Legal Custody to Shared Physical Custody is the ability of the parents to talk about and reach joint decisions that affect the child's welfare. If you are constantly fighting over what religion or what school, the court may strike down your agreement.

Other factors include:

willingness to share custody; fitness;

child's relationships with parents;

child's preference;

ability to stabilize child's school and social life;

closeness to parent's homes (primarily a factor during the school year) ;

employment considerations (e.g. long hours, extensive travel, etc.);

age and number of children;

financial status;

benefit to parent.

Additionally, the sincerity of the parties involved is important. The court will want to make sure that joint custody isn't being traded for concessions on other points. Another consideration is whether the grant of joint custody will affect any assistance programs.

Currently, Welfare and Medical Assistance are affected based on the award of Joint Legal Custody. Be sure to check with your contact at any social service agencies before entering into an agreement or you may be jeopardizing your benefits. This list is not meant to be complete and the court will hear anything that they believe to be relevant.

Best interests of the child

Suitability of each parent as custodian Psychological, emotional, and developmental needs of the child Ability of the parents to communicate Prior and continuing care that the parents have given the child Wishes of the child Safety of the child

Custodial agreements of the parents

History of domestic abuse

We zealously represent the best interests of mothers, fathers, grandparents and other interested parties in custody controversies without putting children in the middle of the dispute. We are committed to providing the most effective level of service to each of our valued clients in a caring and compassionate manner. We handle child custody issues including:

What are some common terms?

Legal Custody - the parent with legal custody can make all decisions regarding the health, welfare and education of the child.

Physical Custody - determines which parent has the actual, physical right to be with the child.

Sole Legal Custody - when one parent is awarded sole legal custody, that parent makes all decisions regarding the health, education and welfare of the child

Sole Physical Custody - when one parent is given sole physical custody, the child remains with that parent while the other parent is excluded from having physical custody of the child. Often, sole custody is awarded in cases where the other parent has abused or neglected the child.

Joint Legal Custody - both parents participate in reaching decisions regarding the health, education and welfare of the child.

Joint Physical Custody - both parents have the ability to be with the child, typically joint physical custody is coupled with a parenting plan to determine who will be with the child at what particular time.

Shared Custody - both parents equally share the legal and physical custody of the child. Typically found only where both parents are able to resolve their personal differences and keep them in check for the sake of raising the child in a caring, nurturing environment.

What is the difference between custodial parent and non-custodial parent?

The custodial parent is the term that is used for the parent that has primary physical custody of a child. Typically the child resides with the custodial parent.

The term non-custodial parent is used for the parent that has the child for a lesser amount of time. Typically the child does not reside with the non-custodial parent except during the time that the non-custodial parent exercises his/her visitation right with the child.

Typically, the child is either with the custodial parent or the non-custodial parent but not both. This arrangement comes as a result of the separation of the parents and both parents maintaining separate residences. The child resides with the custodial parent most of the time and the non-custodial parent spends time with the child during periods of child visitation. This way, both parents get to spend time with the child despite having separate residences.

What is child visitation and a ‘parenting plan’?

Custody and visitation are considered at the same time since the factors and circumstances taken into consideration by the court in making these determinations are essentially the same.

The term "child visitation" refers to the time when the non-custodial parent has the right to be with the child. The custodial parent's right to be with the child is often subject to the non-custodial parent's right to visit with the child.

The term "parenting plan" refers to the agreement between the parents or the court order which defines provisions for custody and visitation. It determines whether one or both parents has the ability to make decisions regarding the health, education and welfare of the child. The parenting plan also defines when the child is to be with the non-custodial parent.

What are some common arrangements for child visitation?

Child visitation, often pursuant to a parenting plan, can take a variety of forms or schedules. Some common arrangements include some of the following provisions:

(1) Alternate weekend visitation with the non-custodial parent, including "three-day holidays"

(2) Mid-week visitation with the non-custodial parent

(3) Sharing of the child during periods of school recess -winter, spring and summer

(4) New Year's Eve, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate years (click here for a useful article on holiday visitations)

(5) Mother's Day with Mother, Father's Day with Father

(6) Alternate years on the child's birthday

(7) Open telephone contact by the parent who does not have actual physical custody of the child

(9) Exchange of a few days of visitation here and there as mutually agreed without the need for a change or modification of the court order

What factors go into determining custody and visitation?

The primary consideration is, "What is in the best interest of the child?" The focus is from the viewpoint of the child as opposed to the wants and desires of one parent or the other.

Some states have established a general rule that it is in the best interest of a child to have continuing and frequent contact with both parents and the parent who is most supportive of this concept becomes the custodial parent. If one parent attempts to undermine the relationship between the child and the other parent, this factor could be considered in providing custody or additional visitation to the other parent. In California, the impact of a proposed move on a noncustodial parent’s relationship with his children may be considered a relevant factor in determining what is in the best interests of the child.

The best interest of a child is determined on a case-by-case basis upon consideration of all relevant facts concerning the circumstances of both parents.

Do the wishes of a child have any influence in custody decisions?

Some states (NOT ALL) allow children of sufficient maturity to have an impact upon the determination of custody and visitation by considering their desire to reside with one parent or the other. Judges will listen closely to the child's stated preference and his or her reasons. The child does not have the final say and it will be the judge's decision just how much consideration is to be given to the child's wishes, depending on age, maturity, and the quality of the reasons. The overriding question will always be: what is in the child's best interest?

What if the child's best interest does not coincide with the parents' personal desires?

It may be in the best interest of the child to remain in the home with people he has lived his entire life rather than be uprooted after the loss of his mother and transferred to someone he does not know.

If the natural father challenges the issue and desires custody the court will have a difficult decision to make. If he agrees to the change of custody, the court should most likely grant it. The situation is similar to a step-parent adoption where the state tends to be more lenient in the examination it makes before it grants the change of custody. In this case the natural parent in the household will have passed away; however the child has been living in the home with the stepparent and, if thriving, the court may grant it.

What if both parents agree on child custody and visitation?