When it comes to two individuals that share a child or children divorcing or separating, navigating the process of divorce or separation involves also addressing the issue of child custody. Determining custody arrangements 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 child custody arrangements 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 custodian. Importantly, the exact laws concerning child custody will vary by state. As such, you should always consult and be familiar with your state’s exact laws on child custody.
Although each state has their own laws concerning child custody, every state will always adhere to the child’s best interest standard when making any decision regarding child custody. The child’s best interest standard is a legal standard which states that all decisions related to a child must be made in accordance with the child’s interests and backgrounds being placed above the parent’s personal preferences.
In general, most courts presume that a child spending time with both parents is in the child’s best interest. This means that most courts tend to favor joint custody arrangements, which will be discussed in this article.
However, that presumption can often be rebutted or reassessed. For example, 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, instead of ordering joint custody. The following article explores the differences between sole, full, and joint custody arrangements.
What Are the Different Types of Child Custody?
In every custody order there will be two main types of custody that are discussed and ordered: legal custody and physical custody. It is important to recognize the differences between legal custody and physical custody.
A parent that has legal custody over their child or children will have the right to make important legal decisions on behalf of that child. On the other hand, physical custody refers to a parent’s right to determine where their child resides.
In some cases, both parents may share joint physical and legal custody of their child. As noted above, there is a general presumption held by most courts that spending time with both parents is in a child’s best interest.
What Is Legal Custody?
Once again, a parent that has legal custody over their child or children will have the right to make important decisions with regard to that child’s upbringing.
Examples of important decisions that a parent with legal custody has, include but are not limited to:
- The right to make educational decisions for their child, such as what type of school the child should go to, what type of courses the child should take, where the child should attend school, 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 a legal contract on behalf of their child, as well as the right to represent their child in a lawsuit that concerns the child
- The right to make medical decisions for their child, such as whether or not their child should undergo invasive or noninvasive medical procedures
- The right to consent to and make decisions regarding the psychiatric treatment for their child
- The right to determine the child’s primary residence, which may impact tax returns and other legal rights
It is important to note that legal custody may be shared between parents, or granted solely to one parent. If legal custody is shared between parents, then the order may state that both parents have a right to make legal decisions for the child while they are in their care.
Alternatively, each parent may be responsible for making legal decisions within different areas. For instance, the parent with primary custody (i.e. the parent with whom the child lives with 50% or more of the time) may have primary decision-making authority with regard to education, while the other parent is responsible for decisions regarding religious upbringing.
Parents with sole legal custody will have the exclusive right to make decisions regarding their child’s upbringing. In other words, parents with sole legal custody don’t need to communicate with or receive permission from the other parent in order to make decisions on behalf of their child, such as invasive medical decisions.
Sole legal custody usually isn’t preferred by the courts, unless the court’s determine that sharing legal custody would be unsafe for the child. Whether or not sole, full, or joint custody is ordered will depend on the type of custody arrangement ordered by the Court.
What Is Physical Custody?
Physical custody simply refers to a parent’s right to determine where their child resides. Importantly, physical and legal custody will be determined together in almost every case. Similar to legal custody, physical custody may be shared by both parents, or be granted solely to one parent.
Joint physical custody situations where both parents are able to physically care for the child, are generally preferred by courts. This is because such arrangements allow for both parents to have frequent and ongoing contact with their child or children. In other words, both parents will generally have the right to possess their child.
Full physical custody refers to a type of physical custody arrangement where a child is legally allowed to live with only one of their parents. The other parent may then be granted periods of visitation with the child. In some cases, the other parent may be granted no periods of visitation.
Once again, courts will not award sole custody, unless it is proven that it would not be in the child’s best interests to live with the other parent. For example, if there is evidence of child abuse or domestic abuse, that may be grounds for granting sole physical custody.
What Are Examples of Different Child Custody Arrangements?
As mentioned above, there are different types of physical and legal custody arrangements that may be ordered depending on your particular familial situation. The following is a list of different custody arrangements that a court may order:
- Sole Custody Arrangement: In a sole custody arrangement, only one parent will have custody of the child for most of the time. The other parent is then permitted certain child visitation rights, that allow them to visit with their child for an allotted period of time
- In general, courts are moving away from sole custody arrangements, as numerous courts presume that a child having access to both parents is in the child’s best interest
- If there is evidence that the child is in clear danger in one parent’s household, or evidence is shown that permitting one parent custody of the child is not in the child’s best interest, sole physical or legal custody may be ordered by a court
- Joint Custody Arrangement: When the two parents can agree on custody, or a court orders them to share decision-making and child-raising responsibilities, joint custody will be ordered
- Courts generally prefer joint child custody arrangements as they are typically considered to be in the child’s best interests
- Joint child custody arrangements ensure children have continued contact and involvement with both parents by allowing both parents to have almost equal possession and access to their child or children
- Bird’s Nest Custody: Bird’s nest child custody refers to a rare form of child custody where the child remains living in the family home and the parents take turns moving in and out of the home to care for the child
- Bird’s nest custody is typically not granted as it is disruptive for the parents’ schedules, and the parents will not typically be amenable to the arrangement
- Split Custody: In a split child custody arrangement, otherwise known as a 50-50 child custody arrangement, both parents are granted equal rights to physical possession of their child or children
- Split custody arrangements are rarer than a joint custody arrangement as one parent is typically less available to provide care for their child on a daily basis
- For instance, one parent may have a career that does not provide them the time to care for their child fifty percent of the time
What Is Full Custody?
In cases where the court believes that continued contact with one parent would be physically or emotionally harmful to the child, the primary physical custodial parent may be granted both sole legal and sole physical custody.
This type of custody arrangement is often referred to as full custody, as one parent has complete authority with regard to both legal and physical custody. In rare cases, the parent that is not granted full custody may have their parental rights terminated. However, this is generally not the case, as the other parent will generally have an obligation to support their child by paying child support.
It is important to note that some states use the terms full custody and sole custody interchangeably. In other words, some states may define full custody as one parent being the primary physical custodian, but both parents sharing equal legal custody rights. As such, it is important to consult your local state’s child custody laws regarding the exact definitions of sole, full, and joint custody.
What Factors Are Considered When Ordering Full Custody?
As mentioned above, there are many different situations that may constitute valid grounds to award a parent primary full custody over a child, including 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
Do I Need a Lawyer for Help With Sole, Full, or Joint Child Custody?
As can be seen, there are numerous factors taken into account when a court is determining physical and legal custody of a child in the case of a divorce or separation. As such, if you are going through the divorce process with children or if you are going through a legal separation that involves children, it is in your best interests to consult with an experienced child custody lawyer.
LegalMatch can assist you with locating and setting up an initial consultation with a child custody lawyer in your area. A lawyer will be able to help you understand your state’s specific laws on child custody, including the exact definitions of sole, full, and joint custody.
Additionally, an attorney will also be able to help you gather evidence necessary to make your best case for being granted additional custodial rights to your child or children. Further, they will also be able to initiate and respond to any legal pleadings necessary to protect your rights as a parent. Finally, an attorney will also be able to represent you in court, as needed.
