When it comes to two individuals separating that share a child, navigating the process of divorce or separation involves also addressing the issue of child custody. When it comes to determining custody arrangements, that is often a complicated matter.
It is important to note that every individual’s custody arrangement will be unique. This is because there are numerous different forms of child custody that may be granted or ordered by a court.
As a legal term, child custody refers to the legal and practical relationship between a child and their parent or legal guardian. It is important to note that the exact laws concerning child custody will vary by state. As such, you should always be familiar with your state’s exact laws concerning child custody.
Although each state has their own laws concerning child custody, every state will adhere to the child’s best interest standard when making any decision regarding child custody. The child’s best interest standard is a standard that dictates that all decisions related to a child must be made with the child’s interests and backgrounds above the parent’s personal preferences.
Generally speaking, most courts presume that a child spending time with both parents is in the child’s best interest. In other words, most courts tend to favor joint custody arrangements, which are discussed below.
However, that presumption can be rebutted. For instance, there are some situations in which a court may determine that it is in a child’s best interest for one parent to have full or sole custody of a child. In almost every case, one parent will be granted primary custody of a child. This means that the child resides with them most of the time.
The following article explores what primary custody is, as well as how primary custody can operate differently in a sole custody arrangement and a joint custody arrangement.
What Is Primary Custody?
As mentioned above, the term primary custody refers to a custodial arrangement where one parent has the child living with them for the majority of the time. Oftentimes this occurs because one parent has more availability to provide for a child or children then the other parent.
For example, if one parent works from home, that parent may be more available to provide for the daily care of a child more than a parent that works outside the home. When a parent is granted primary custody, that parent is often referred to as the primary custodial parent.
Then the other parent who does not possess the child or children the majority of the time is known as the noncustodial parent. The noncustodial parent may then have either visitation rights or share some custody responsibilities with the primary custodial parent. Primary custody can be broken down further into primary physical custody and primary legal custody.
Primary Physical Custody
Once again, when one parent is granted physical primary custody, that means that the child will live with them most of the time. In other words, they will possess and have custody over the child more than fifty percent of the time.
However, this does not mean that the primary custodial parent will have full decision making authority when it comes to decisions involving the child. This is because a parent may have primary physical custody of a child, but share legal custody of the child with the other parent.
Primary Legal Custody
A parent that has legal custody over their child will have the right to make important legal decisions on behalf of that child.
Examples of important decisions that a parent with legal custody will have when it comes to their child, include:
- The right to make educational decisions for their child, such as what type of school they go to, what type of courses the child should take, and other educational choices
- The right to make religious decisions regarding what religion to raise the child in, if any
- The right to make legal decisions on behalf of their child, such as whether or not to enter into certain legal contracts on behalf of their child or represent their child in a lawsuit
- The right to make medical decisions for their child, such as whether or not their child should undergo invasive and noninvasive procedures
- The right to make decisions regarding the psychiatric treatment for their child
Importantly, if a parent has primary legal custody of a child, that means they alone will possess the right to make most, if not all, of the decisions listed above. However, courts tend to favor arrangements where both parents share legal custody and the ability to make decisions regarding the upbringing of their child, if possible. These arrangements are known as joint custody arrangements.
Primary Physical Custody with Joint Legal Custody
As noted above, many courts favor joint custody arrangements, as they believe it is in the child’s best interests for both parents to take a role in raising their child. When parents have joint physical custody, a court will still award primary physical custody of the child to one parent in most situations.
Once again, the parent who possesses the child more than fifty percent of the time will often be named the primary custodial parent. This is often important for determining the child’s primary residence, as well as claiming the child on tax returns.
However, the parents can agree to a different arrangement in the child custody order, such as one parent claiming the child in even numbered years and the other parent claiming the child on taxes in odd numbered years.
When both parents can agree on all of the issues that need to be addressed in a custody order, or if a court orders both to share decision-making and child-raising responsibilities, they will be granted joint custody of their child or children.
Joint child custody arrangements are favored by courts as they ensure children have continued contact and involvement with both of their parents. Further, joint custody arrangements allow both parents to have almost equal possession and access to their child or children.
As far as the exact child possession split in a joint custody order, joint custody may include a 60/40 possession schedule, 70/30 possession schedule, or any other joint schedule where one parent is primary and the other parent possesses the child for a lesser period of time.
If each parent possesses the child fifty percent of the time, then both parents may be considered to be the primary custodial parent in some states. Further, in split fifty-fifty possession schedules, there may be no child support ordered as each parent will share equal responsibility for providing for the child.
Primary Physical Custody with Primary Sole Legal Custody
Sole physical custody once again refers to the child living with only one parent, who is known as the sole physical custodial parent. In most sole physical custody cases, the noncustodial parent will receive some form of visitation rights where they will have scheduled meetings and periods of possession with the child.
However, there are rare cases where the noncustodial parent will be granted no access or visitation rights to the child. In fact, there are many different situations that may constitute valid grounds to award a parent primary full custody over a child.
Primary physical custody with primary sole legal custody may be granted when:
- The other parent, i.e. the non custodial parent, is incapacitated, incarcerated, or otherwise unable to assist in raising the child and sharing custody rights
- The other parent has voluntarily forfeited their parental rights and responsibilities
- The non custodial parent has a documented history spousal or child abuse, domestic violence, or child neglect
- The noncustodial parent has a documented history of removing and secreting their shared child from the other parent
- The noncustodial parent has violated the existing child custody order to an extent where it is not in the child’s best interest to have continued contact with that parent
In the cases where the court believes that continued contact with the other parent would be physically or emotionally harmful to the child, the primary physical custodial parent may be granted both sole legal and physical custody. Further, the other parent’s rights may be terminated in rare instances.
Do I Need a Lawyer for Help With Obtaining Primary Custody?
As can be seen, there are numerous factors involved with regard to determining which parent should be granted primary custody over a child. As such, if you are going through a divorce with children or if you are going through a separation that involves children, it is recommended to consult with an experienced child custody lawyer.
LegalMatch can assist you with locating and setting up a consultation with an experienced child custody attorney in your area. A lawyer can help you understand your state’s specific laws on child custody, including your state’s laws when it comes to obtaining primary physical and legal custody of a child.
They will also be able to inform you of your best course of legal action. A child custody attorney will also be able to help you obtain a custody arrangement that works best for yourself and your child or children. Finally, a lawyer will also be able to represent you in court, as needed.
