Utah Legal Aid shares the general framework of the different types of custody arrangements that are available across the nation. There are two different kinds of custody which may be shared in three ways. The two types of custody are the following:
- Legal custody: The parent who makes important decisions about the children; and
- Physical custody: Where the children reside.
Custody may be shared in three various methods. This may be completed differently for legal and physical custody:
- Sole: Legal and physical custody may be granted to one parent alone. If sole physical custody is given to a parent, the other parent still holds the right to visit the child;
- Joint: Both parents are involved in joint custody. With joint legal custody, both parents have the right to make important decisions about the children, such as education, religion, and non-emergency medical care. Joint legal custody will work when the parties cooperate and communicate with each other often; and
- Split: This means the children are split between the parents. For instance, one child will reside with the mother and one child will reside with the father. This type of custody is advised only in some cases.
What is Sole Legal Custody?
Custody may include the legal and physical custody of a child. Legal custody is the authority to make decisions for and about a child. Sole legal custody also referred to as sole parental responsibility is when one parent has full responsibility to make major decisions for the child. The other parent does not have a say, but often has visitation rights and the responsibility to pay child support.
The alternative to sole legal custody is joint legal custody, where parents share decision-making. You need to specify in your parenting plan what type of legal custody your family will utilize. This determines who makes decisions about your children’s education, medical care, religion, extracurricular activities, and more.
What are the Basics of Sole Legal Custody?
Generally, sole legal custody is granted alongside sole physical custody. Sole legal custody is best for situations where one parent is unavailable or unable to make decisions on short notice. It is often necessary in cases of parental instability, substance abuse, child abuse, neglect, abandonment, or similar situations. It is becoming less common because many state guidelines set joint legal custody as the default. In these states, sole legal custody is granted only if joint legal custody would be considered harmful to the child.
Furthermore, there are factors considered when granting sole legal custody. Many courts presume both parents should raise a child unless evidence demonstrates otherwise. Factors the court considers to determine if sole legal custody is appropriate for each situation include:
- If sole legal custody would benefit the child;
- If it is practical for each parent to make decisions for the child;
- If a parent is unfit or could pose a danger to the child; and
- If one parent is seeking sole legal custody to exclude the other from the child’s life.
While these factors are crucial in all legal custody disputes, laws and practices depend from state to state. Be sure to consult your state’s custody guidelines for further information.
What are the Advantages and Disadvantages of Sole Legal Custody?
In some situations, parents cannot cooperate. In these cases, sole legal custody may be the best option. When one parent is responsible for all major decisions, parents do not need to communicate as much. This lowers the possibility of conflict between them.
Another benefit of sole legal custody is the consistency, which children thrive on. For instance, sole legal custody eliminates the confusion kids could face if their parents made child-rearing decisions based on conflicting belief systems. In addition, removing decision-making rights from a parent who is violent or who abuses substances can protect a child. Keep in mind that the parent will still have supervised visitation.
Moreover, there are some disadvantages to sole legal custody. A court order awarding sole legal custody to one parent can be disheartening for the other if they have invested in raising the children. For the parent excluded from major decision-making, resentment can build up.
Over time, the children may view them as less important than the other parent due to the limited involvement in their lives. This can create a source of conflict within the family. When a parent makes decisions alone, they do not benefit from bouncing ideas off the other parent. It is at their discretion whether to seek input from the other parent.
What Situations Yield Sole Legal Custody?
Sole legal custody often appeals to parents because of the simplicity of making decisions without having to consult anyone. However, it is not intended as a workaround for parents who have difficulty compromising. It is meant for situations in which one parent is deemed more likely to make sound decisions. If both parents are available and able to make reasonable decisions, the court is unlikely to grant sole legal custody.
Situations where sole legal custody functions will include:
- When one parent fails to maintain contact with the children and is essentially absent from their lives;
- When it is impractical for parents to make decisions together swiftly due to the different time zones;
- When a parent is unfit to make decisions for their child due to mental health issues, substance abuse, or a history of neglect or abuse; and
- Without sufficient evidence that involving the other parent in decision-making could harm your child, your chances of earning sole legal custody are slim.
What is the Child’s Best Interest in Custody Decisions?
The Child welfare government website specifies what the child’s best interests evaluation is across all the states. Although there is no standard definition of the best interests of the child, the term typically refers to the deliberation that courts undertake when deciding what type of services, actions, and orders will best serve a child as well as who is best suited to care for the child.
Best interests determinations are usually evaluated by considering several factors related to the child’s circumstances and the parent caregiver’s circumstances and capacity to parent, with the child’s ultimate safety and well-being as the main concern.
Moreover, state statutes frequently reference overarching goals, purposes, and objectives that shape the analysis in making best interests determinations. The following are among the most frequently stated guiding principles:
- The importance of family integrity and preference for avoiding removal of the child from their home (about 28 States, American Samoa, Guam, Puerto Rico, and the U.S. Virgin Islands);
- The health, safety, and protection of the child (21 States and the Northern Mariana Islands);
- Importance of timely permanency decisions (19 States and the U.S. Virgin Islands); and
- The assurance that a child removed from their home will be given care, treatment, and guidance that will assist the child in becoming a self-sufficient adult (12 States, American Samoa, and Guam).
Furthermore, about 22 States and the District of Columbia list in their statutes specific factors for courts to evaluate in making determinations regarding the best interests of the child. While the factors depend considerably from state to state, some factors commonly mandated include the following:
- The emotional ties and relationships between the child and his or her parents, siblings, family, and household members, or other caregivers (15 States and the District of Columbia);
- The capacity of the parents to provide a safe home and adequate food, clothing, and medical care (about 10 states);
- The mental and physical health needs of the child (nine States and the District of Columbia); and
- The presence of domestic violence in the home (nine States).
When Do I Need to Contact a Lawyer?
If you have questions regarding sole legal custody, do not hesitate to contact your local child custody attorney for further assistance. Your attorney can provide you with the legal guidance and representation needed for your case.
