When parents divorce, a judge will divide the couple’s property and debts and will decide who should have custody of the children. If a judge awards one parent sole custody, the other parent may have limited rights and responsibilities for the children.
Parents can divide custody into two main categories: legal custody and physical custody. Legal custody refers to a parent’s right to make decisions about their child’s educational, medical, and general welfare. Physical custody generally refers to a parent’s time with the child, including where the child will live and which parent will be responsible for the child’s daily needs. A judge can award either type of custody to one parent (sole), or to both parents (joint).
Some of the common combinations of custody awards include:
- joint legal and sole physical custody
- joint legal and joint physical custody
- sole legal and joint physical custody (rare), or
- sole legal and sole physical custody (very rare).
It's best for parents to work together to decide what type of custody arrangement works for their family, especially their children, but if they can’t agree, a judge will decide based on what’s best for the children. Some states (like Ohio and Idaho) have a specific set of best interest factors they must review before they decide custody, but other states only require judges to consider what they think is best for the child.
Sole Physical Custody
Sole physical custody means that the court recognizes one parent as the “custodial" or "primary" parent, and the child will spend the greatest amount of time in that person’s home, with visitation between the child and the other parent (noncustodial parent). A judge will create a visitation schedule (also called a parenting schedule) for the noncustodial parent and the child. A typical schedule will include details governing the following:
- weekend and some mid-week visitation
- extended parenting time on holidays, school vacations, and summer
- detailed pick-up and drop-off information, including who will provide transportation, and
- a non-custodial parent’s right to access the child’s medical and educational records.
Sole physical custody still allows each parent to have quality time with their children and gives the children stability and routine by allowing the child to have a “home base” in the custodial parent’s home. It’s important for noncustodial parents to understand that they have the right to make day-to-day decisions for their children while the children are in their care, and the right to attend any of the children's extracurricular activities, regardless of whose parenting time is on the calendar.
Sole Legal Custody
Unlike sole physical custody, judges are more hesitant to award one parent sole legal custody of their children. In cases where one parent has a history of domestic violence, drug or alcohol abuse, mental illness, or neglect, the court may grant sole custody to the other parent (making that parent the child’s legal custodian), but only if it’s in the child’s best interest.
Sole legal custody has a serious impact on the other parent’s decision-making power. The parent who the court designates as the legal custodian does not have to consult with, or inform the other parent of any major decisions that affect the child. If a father has sole legal custody and the child needs braces, he’s not required to ask permission from the child’s other parent. This type of custody award may cause one parent to feel powerless, which is why the court takes a request for sole legal custody very seriously.
In addition to decision-making power, an award of sole legal custody may also mean that a parent can relocate without asking permission. In Michigan, for example, if parents share joint legal custody, courts prohibit the custodial parent from moving more than 100 miles (within the state) from the child’s residence at the time of the custody order. However, if one parent holds sole legal custody, they are free to move anywhere within the state and only need to inform the court of their new address. Michigan is a large state, so an in-state move may have a dramatic effect on a noncustodial parent’s visitation rights.
Regardless of a custody title, it’s imperative that both parents have a meaningful relationship with their children. A court order isn’t a suggestion, so a legal custodian can’t deny or change a non-custodial parent’s visitation unless they specifically ask the court to modify the order.
If you have questions about your custody order or are seeking a new custody order, you should contact a family law attorney near you.