Not all relationships end in happily ever after. When parents split up, they’ll have to decide who gets custody of their children, and if they can't decide, a judge will. Although you should talk to an experienced family lawyer to help you navigate the complexities of custody, it’s also important for you to know some basic terms so you can make informed decisions.
Types of Custody
Rules regarding child custody are a matter of state law. However, virtually every state recognizes some form of legal and physical custody. The terminology in your state may be different. For example, certain states call “physical custody” of a child “primary access.” It's important to be aware of how different terms are used in your state.
Custody will fall into one of two types: physical custody and legal custody. Within these two custody types, parents can either share custody, which is also referred to as having “joint custody,” or one parent may have primary custody, which is called “sole custody.” A parent may have sole physical custody and joint legal custody. Other times parents may share both physical and legal custody. Or one parent can have sole legal and sole physical custody.
Physical Custody: Joint or Sole
The parent who has physical custody of a child is the parent with whom the child lives. A parent who has sole physical custody has the primary—and in some cases exclusive—responsibility to care for the kid’s everyday needs, including food, shelter, and safety.
Parents may split physical custody, which means the child lives with one parent 4 days a week and lives with the other parent 3 days a week. When parents share physical custody, the child doesn’t have to split time evenly between parents. Most states require that a child spend a minimum of 110 overnights with each parent to qualify as a joint physical custody arrangement.
Legal Custody: Joint or Sole
Legal custody refers to a parent’s right to make decisions about a child's health, education, and welfare. For example, a parent with legal custody can decide where a child should go to school, how the child should be disciplined, and if the child should have a certain religious upbringing.
Like physical custody, parents can share legal custody or one parent may have sole legal custody rights. A parent who has sole legal custody over a child is the only parent allowed to make major educational, medical, or religious decisions on the child’s behalf. Even if parents share legal custody rights, an order may designate one parent as the final decision-maker. If parents who share legal custody can’t reach an agreement on a decision, the designated parent has the final say.
When one parent has sole physical custody of a child, the other parent will typically have visitation rights. The parent with physical custody is called the “custodial parent” and the other parent is the “noncustodial parent”. Parents are free to work out their own visitation agreements, but when parents can’t agree, a court will issue a visitation order.
Most visitation schedules give the noncustodial parent visitation one weeknight per week and every other weekend. Visitation can be increased as the parents agree or the court allows. A noncustodial parent is also entitled to time during a child’s summer break and on certain holidays.
A court may order supervised visitation in cases where one parent poses a danger or has never developed a relationship with the child. A parent with supervised visits can spend time with the child at a licensed facility or in the presence of a designated third-party. Parents can agree to supervised visitation or a judge may order supervised visits to protect a child.
In certain cases a court may award visitation to a child’s grandparents. The general rule is that grandparent visitation can’t interfere with the parent-child relationship. Also, a grandparent seeking visitation rights must show that visitation would serve the child’s best interests. Again, talk to an experienced attorney for advice about your particular case.
Questions for Your Attorney
- My spouse and I have agreed to share physical and legal custody. Do I need to have a court approve our custody agreement?
- I’m between jobs and planning to move closer to my child soon. How can I obtain sole physical custody?
- My ex and I share legal custody of our son right now but we fight constantly. Do I have a chance at getting sole legal custody?