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Types of Custody
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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. |
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| 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. |
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| 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.. |
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| 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. |
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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 (such as when one parent is mentally impaired but otherwise a positive influence), a court may even award sole legal custody to one parent, with a shared physical custody arrangement. |
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Factors To Consider
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| What's best for your children depends on many factors. You and your spouse would be good candidates for joint legal custody if: |
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- 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.
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Parents Working Together
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| 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. |
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The Importance of Consulting An Attorney
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| 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. |
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Getting It Right The First Time
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| 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. |
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Children Are Priceless
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| 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. |
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Contents copyright 2000 - 2005, Roy N. Martin, P.C. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, or stored in any information storage and retrieval system without prior written permission from Roy N. Martin, P.C.
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