If you are facing a divorce and you have children, one of the most difficult and emotional issues for you to handle may be the custody of your children. This guide will help you understand some of the legal terminology you may encounter.
Legal Custody and Physical Custody
In determining child custody issues, one issue the court will decide is who will have physical custody of the children and who will have legal custody. Physical custody means that that parent has the right to have the child live or stay with them. Physical custody can be either sole or joint. Legal custody means a parent has the right to make decisions about how the child is raised. This can include things like making decisions about medical care, school, extra-curricular activities, etc. Like physical custody, legal custody can be either sole, or joint.
Sole Custody versus Joint Custody
A court may decide that one parent has sole legal custody or sole physical custody of a child.
A court may award sole physical custody to one parent if the other parent is unfit, such as because of a history of child abuse, drug abuse, etc., or if the child primarily has lived with one parent. Usually, if one parent is awarded sole physical custody, the other parent will be awarded visitation rights, meaning that the child will have prescribed times in which they will visit or stay with the other parent. In cases where abuse may be a factor, the court can decide that visitation may be supervised by an agent of the court or social services.
In many cases, the court awards the parents joint physical custody. This means the child will live part of the time with one parent, and part of the time with the other parent. If the parents cannot agree, the court will impose a schedule on the parents that must be followed. There are a wide variety of joint physical custody arrangements. A big factor in how the court determines the custody arrangement will be the residences of the party, or how far apart the parents live from each other. In most states, the court will decide what is in the best interest of the child in making their decision.
Sole legal custody is not awarded as often as sole physical custody. Sole legal custody means one parent has all of the rights to make the decisions in the child’s upbringing. More often than not, courts award joint legal custody, meaning that both parties can make decisions for the child.
As explained above, if one parent has sole physical custody, it is likely that the court will award visitation rights to the parent not having physical custody (often called the “non-custodial parent”). A schedule is developed and is followed for visitation by the court. If one party does not follow the schedule, they can take the other parent back to court. It should also be noted that failure to pay child support is never a valid reason for denying a parent their visitation rights.
Please note that this article should not be used as or considered legal advice. It is important to contact a licensed attorney to help you with any legal issues you may have.